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Home My WebLink Aboutagenda.council.regular.20060814 CITY COUNCIL AGENDA August 14, 2006 5:00 P.M. I.Call to Order II.RolI Call III.Scheduled Public Appearances a)Outstanding Employee Bonus Awards IV.Citizens Comments & Petitions (Time for any citizen to address Council on issues NOT on the agenda. Please limit your comments to 3 minutes) V.Special Orders of the Day a)Mayor's Comments b)Councilmembers' Comments c)City Manager's Comments d)Board Reports VI.Consent Calendar (These matters may be adopted together by a single motion) a)Resolution #60, 2006 - Allocation of REMP Funds b)Resolution #61, 2006 - Contract Planning Services - Alan Richman c) Resolution #62, 2006 - Contract Planning Services - Clarion Associates d)Resolution #63, 2006 - Amendment Electric Resources Pooling Agreement MEAN e)Appointment of Alternate Director to MEAN Board f)Resolution #64, 2006 - Endorsement of 25 x 25 Initiative Minutes - July 24, 2006 VII.First Reading of Ordinances a)Ordinance #35,2006 - North Spruce Water Agreement Amendment P.H. 8/28 VlIl.Public Hearings a)Ordinance #24, 2006 -1001 Ute Consolidated PUD b)Ordinance #26, 2006 - Boomerang Lodge PUD c)Ordinance #27,2006 - Code Amendments TDRs d)Ordinance #31,2006 - 100 East Bleeker Establishment of 2 TDRs e)Ordinance #32, 2006 - 403 West Hallam Establishment of 2 TDRs Action Items Information Items Adjournment Next Regular Meeting Auaust 28. 2006 COUNCIL SCHEDULES A 15 MINUTE DINNER BREAK APPROXIMATELY 7 P.M. ~ R.. 4J C ~ ~ ~ ~ s -tl 't ~ " ,,- > i . 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'.'....~ .... ....~;;r ..;: ~ \~": '<l"'- ,_._: .... ~ .- '-~ .i~ \ 1 --- WI d i t ~ - " ~ ~ c$ ~ J 0- ~I ... . ,,-I --,- -,.....,-". fieL MEMORANDUM TO: Mayor Klanderud and Aspen City Council THRU: Steve Barwick, City Manager Chris Bendon, Community Development Director FROM: Randy Udall, Community Office for Resoml!!Siency Stephen Kanipe, Chief Building Official I/,"'"' Renewable Energy Mitigation Program Funding Request RE: DATE: August 14,2006 SUMMARY: In January 2000 the Pitkin County Commissioners and Aspen City Council approved the Renewable Energy Mitigation Program (REMP} According to the REMP Ordinance, the Community Office for Resource Efficiency (CORE) is responsible for developing proposals for spending funds collected into the REMP fund, Those proposals must be reviewed and approved by the CORE Board_ The CORE Board includes: IE. DeVilbiss, Patti Clapper, Phil Overeynder, Steve Casey (Holy Cross Energy), Alice Hubbard, Sally Sparhawk and Bill Stirling. The Board of the CORE has recommended approval of funding items for a total of $1,965,000. REMP funding procedure requires joint approval by Aspen City Council and Pitkin County Commissioners. Attached: Resolution for this funding request The current REMP fund balance is approximately $3,700,000 million and the proposed expenditures equal to $1,965,000. Ifall of the projects are approved, about $2,000,000 will remain in the REMP fund. RECOMMENDED ACTION: CORE board recommends approval of Resolution # authorizing spending funds generated through the Renewable Energy Mitigation Program. ~ -_...j RESOLUTION # Iv 0 (S~RIES OF 2006) A RESOLUTION OF THE CITY OF ASPEN, COLORADO AUTHORIZING SPENDING OF FUNDS GENERATED THROUGH THE RENEWABLE ENERGY MITIGATION PROGRAM WHEREAS, On December 13, 1999, City Council Approved Ordinance No. 55 adopting the Aspen/Pitkin Energy Conservation Code, and WHEREAS, the Aspen/Pitkin Energy Conservation Code allows that the funds be spent in accordance with a joint resolution by the Aspen City Council and the Pitkin County Board of County Commissioners, and WHEREAS, pursuant to the Agreement, the Board of the Community Office for Resource Efficiency approved a number of spending proposals, and WHEREAS, the spending proposals meet the screening criteria of affordable housing, cost-effectiveness, public visibility, and education, environmental benefits, energy efficiency, leverage, unique opportunity, new technologies and green design, and WHEREAS, the Renewable Energy Mitigation Program (Fund) has a balance of approximately $ 3,500,000 and the total of the proposed expenditures equal $1,965,000. NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1: The Aspen City Council does hereby authorize the Community Office for Resource Efficiency to negotiate and secure contracts and manage the installation and/or implementation of the following projects: . Aspen Consolidated Sanitation District, $10,000. This money will be used to fund an exterior lighting retrofit at the AABC wastewater plant. The goal is to save energy, while reducing light pollution and glare at this highly visible site. . Aspen Middle School, $250,000. These funds will be used to fund daylighting and efficiency improvements at the new Aspen Middle School, which is pursuing a green building rating. We estimate that this investment will keep 5,000 tons of carbon dioxide out of the atmosphere each year. . Aspen Public Works Department, $68,000. This money will be used to replace inefficient electrical motors at water lift stations around the city. We will also investigate the possibility of replacing existing pressure reducing valves with in- line hydro turbines. I ....J. . Burlingame Ranch, $90,000. Half of this money will be used to install a 6 kilowatt solar electric system on a multi-family building at Burlingame. The remainder will fund efficiency upgrades on the single family homes that will be built in Phase I. . Canary Alliance Staff Position, $70,000. The City of Aspen's Canary Alliance has completed its greenhouse gas emissions inventory and its climate impacts assessment. The next step is to establish realistic reduction targets and implement the strategies to achieve them. This money would be used to hire a new employee to assist Dan Richardson and CORE in this work for both the City of Aspen and Pitkin County. . Carbondale Emergency Operations Center, $6,000. This money would purchase a solar electric system to help provide uninterruptible power to the Fire Department's Emergency Operations Center in Carbondale, which serves the Crystal River drainage. . Castle Creek Hydro, $200,000. The City of Aspen is developing a new hydropower project that will use water from Maroon and Castle Creeks to produce up to 700 kilowatts of electricity. This money will be used to construct penstocks and pipelines. This plant (to be located on Power Plant, in the general vicinity of the historic plant) will produce up to 10% of the City utility's needs. . Coal Mine Methane Pr"ject, $150,000. One way to slow global warming is to capture methane (natural gas) at landfills, wastewater plants, and coal mines. Methane is a very powerful greenhouse gas that can be burned to produce valuable electricity. A coal mine near Price, Utah is currently venting $30,000 worth of methane each day. CORE, Holy Cross Energy, and Aspen Municipal Electric will use these funds to develop a coal mine methane power project whose climate benefits would offset up to 150,000 tons/year-about one-fifth of the upper valley's emissions. . Community and Mini-grant Programs, $80,000. Half of these funds would support an existing REMP program which provides small renewable energy and energy efficiency grants to area non-profits, schools, and businesses. The remaining $50,000 will fund larger grants up to $15,000, based on merit. . Energy Efficient Appliances, $40,000. This money will replenish an existing REMP program which provides rebates to Valley residents who purchase energy efficient: clothes washers, dishwashers, and refrigerators. . Green Design Grants, $100,000. The most cost effective time to incorporate energy efficiency and renewable energy into a building is during the initial design. The REMP funds requested here would be used to provide technical assistance for six projects. Priority will be given to public projects in the upper Valley. . Home Efficiency Rebate Program, $100,000. Last winter's natural gas bills came as a shock to many. This money would be used to fund a new rebate program focused on insulation, weatherization, and furnace/boiler upgrades. Homeowners would apply for grants to replace inefficient heating equipment, add insulation, or weatherize their homes. 2 ... ..1 . Hydropower Grants, $50,000. This money would support an existing REMP program to encourage homeowners to install hydropower systems on their property. . Keator Grove Affordable Housing, $100,000. This 52 unit affordable housing project in Carbondale is being developed by a nonprofit housing corporation. Pitkin County has supported the project with a loan and grant, in exchange for some units being reserved for people who work in the County. This money will be used to install Energy Star appliances and solar hot water systems. . Marolt Ranch Affordable Housing, $15,000. This money would pay for the installation of solar hot water systems at Marolt Ranch. . Maroon Creek Bridge $20,000. This money would purchase a solar electric system to power the LED bulbs that will illuminate the pedestrian walkway. . North Forty Fire Station, $100,000. This money will fund efficiency upgrades at the new fire station in the Aspen Airport Business Center. We will improve the building insulation and windows, while providing natural ventilation. Computer simulations will be used tQ evaluate the cost effectiveness of each energy conservation measure. . Pitkin County Recycling Centers $6,000. This money would be used to reduce energy and light pollution at the Pitkin County Recycling Center in Basalt. . Red Brick Arts & Recreation Center $30,000. These funds would be used to reduce energy use and greenhouse gas emissions at the Red Brick, by improving boiler and lighting efficiency, as well as installing improved electronic controls. . RFf A Bus Barn, $100,000. These funds will be used to complete a lighting retrofit at the Bus Barn, to replace a number of older electric motors, to add additional insulation, and to support a boiler replacement program. The natural gas bills at RFTA's Bus Barn were nearly $100,000 last year. . Rio Grande Recycling Center, $50,000. The City of Aspen and Obermeyer are building a new recycling center near Rio Grande Park. This money will help fund a "green" roof, a photovoltaic system, and energy efficient lighting. . Snowmass Entry Project, $90,000. The Town of Snowmass Village is building an affordable housing project. This money will be used to fund efficiency upgrades for 29 homes, including foam insulation, efficient boilers, and Energy Star appliances. . Solar Photovoltaic and Solar Hot Water Rebates, $100,000. This money will replenish an existing solar rebate fund that encourages Valley residents to install photovoltaic and solar thermal systems. . Sustainable Settings, Zero Energy Home Project, $50,000. Building on lessons learned in CORE's Blue Creek affordable housing project, this money will fund solar electric and solar hot water systems at a new staff housing complex at Sustainable Settings, a nonprofit in the Crystal River Valley. . CORE REMP Management Fee, $90,000. Of this amount, $10,000 will be used to publicize the REMP consumer rebates. The remainder will be used to administer and manage the work described here. 3 Section 2: The Community Office For Resource Efficiency will report in July 2007 to the Aspen City Council regarding the progress and completion of the approved projects. Dated: August ,2006 Helen Klanderud, Mayor 1, Kathym S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held on August_, 2006 Kathryn S. Koch, City Clerk 4 .rr 1t.1r~. MEMORANDUM COPY: Mayor Klanderud and Aspen City Council Chris Bendon, Community Development Director ~ Paul Menter, Finance Director TO: FROM: RE: Contracts for Consultant Services for Land Use Code Revisions Resolution No. J2.L, Series of 2006 - Richman Planning Services Resolution N o..k....2.-Series of 2006 - Clarion Associates. DATE: August 14, 2006 SUMMARY: Attached are two contracts for professional service related to the moratorium and amendments to the Land Use Code. Alan Richman and Clarion Associates are working together on a series of work session presentations and will be reviewing proposed legislation after staff receives Council direction. The contract for Alan Richman is for $25,000 and the contract for Clarion is for $50,000. Community Development staff have requested a supplemental appropriation to cover the costs of all needed services through the moratorium, including Richman and Clarion as well as CommArts (Henry Beer) and BBC Consulting (Ford Frick). The supplemental request also covers costs related to data collection and analysis and travel and incidentals. Alan Richman is a local planning consultant with extensive background in land use code writing and with particular experience with Aspen's code. Clarion Associates is a nationally renown planning consulting firm with expertise in growth management codes. Staff has to utmost confidence in the capabilities of these two consulting firms. Staff is requesting approval of two service contracts with Alan Richman Planning Services and Clarion Associates. CITY~AGER COMMENTS: ~ ..0 ~-u If' Il ,..1(, C!.~ RECOMMENDED MOTION: "I move to approve Resolution No. JJ, Series of 2006, the contract for services with Alan Richman Planning Services and Resolution No. f2, Series of2006, the contract for services with Clarion Associates for professional. consulting services related to amendments to the Land Use Code. ATTACHMENT: A - Proposed Resolution No.U, Series of 2006, and proposed Resolution No.~ Series of 2006, and proposed contracts for Alan Richman Planning Services and Clarion Associates. 2 RESOLUTION i2J (Series of 2006) A RESOLUTION APPROVING A CONTRACTUAL AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF ASPEN, COLORADO, AND ALAN RICHMAN PLANNING SERVICES FOR CONSULTANT SERVICES RELATED TO AMENDMENTS TO THE CITY OF ASPEN LAND USE CODE. WHEREAS, there has been submitted to the City Council an "Agreement for Professional Services" between the City of Aspen, Colorado, and Alan Richman Planning Services, a copy of which agreement is attached hereto and made a part thereof, for consulting service related to the Land Use Code. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. That the City Council of the City of Aspen hereby approves the "Agreement for Professional Services" between the City of Aspen, Colorado, and Alan Richman Planning Services, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: Helen Kalin Klanderud, Mayor 1, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy ofthat resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held August 14, 2006. Kathryn S. Koch, City Clerk Attachments A - Proposed service contract with Alan Richman Planning Services. . ~_ I LAND USE CODE PLANNING SERVICES AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and Alan Richman Planning Services ("ARPS"). For and in consideration of the mutual covenants contained herein, the parties agree as follows: I. Scope of Work. ARPS shall perform in a competent and professional manner the Scope of Work as developed by the City of Aspen Community Development Department in coordination with Clarion Associates and Alan Richman Planning Services, as amended from time to time, and by this reference incorporated herein. 2. Completion. ARPS shall commence work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed no later than December 2006. Upon request of the City, ARPS shall submit, for the City's approval, a schedule for the performance of ARPS's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's Contract Administrator for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by ARPS. 3. Payment. In consideration of the work performed, City shall pay ARPS on a time and materials basis for all work performed. The rates for work performed by ARPS shall not exceed $175 per hour. All materials and incidentals shall be billed at 100% of cost with no additional administration fee. Except as otherwise mutually agreed to by the parties, the total payments made to ARPS shall not initially exceed $25,000. ARPS shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with ARPS within ten days from receipt of ARPS's bill. 4. Non-Assigrmbilitv. Both parties recognize that this contract is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Authorized sub-contracting shall not relieve ARPS of any of the responsibilities or obligations under this agreement. ARPS shall be and remain solely responsible to the City for the acts, errors, omissions or neglect of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee of ARPS to the extent of the subcontract. The City shall not be obligated to payor be liable for payment of any sums due which may be due to any sub-contractor. It is understood ARPS may subcontract professional services and such subcontracting may be authorized by the City's Contract Administrator, named herein. Contract for Services: Land Use Code Analysis - Alan Richman C:\home\MoratoriumlAlan_contract.doc Page 1 5. Termination. ARPS or the City may terminate this Agreement, without specifying the reason therefore, by giving notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon .any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by ARPS pursuant to this Agreement shall become the property of the City. Notwithstanding the above, ARPS shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by ARPS, and the City may withhold any payments to ARPS for the purposes of set-off until such time as the exact amount of damages due the City from ARPS may be determined. 6. Covenant Against Contingent Fees. ARPS warrants that s/he has not employed or retained any company or person, other than a bona fide employee working for ARPS, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. ARPS shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of ARPS shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of ARPS. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of ARPS. ARPS shall be solely and entirely responsible for its acts and for the acts of ARPS's agents, employees, servants and subcontractors during the performance of this contract. ARPS shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to ARPS and/or ARPS's employees engaged in the performance of the services agreed to herein. 8. Indemnification. ARPS agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the act, omission, error, professional error, mistake, negligence, or other fault of ARPS, any subcontractor of ARPS, or any officer, employee, representative, or agent of ARPS or of any subcontractor of ARPS, or which arises out of Contract for Services: Land Use Code Analysis - Alan Richman C:\home\Moratorium\Alan~contract.doc Page 2 --I. any workmen's compensation claim of any employee of ARPS or of any employee of any subcontractor of ARPS. ARPS agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of ARPS, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse ARPS for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. ARPS's Insurance. (a) ARPS agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by ARPS pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. ARPS shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) ARPS shall procure and maintain, and shall cause any subcontractor of ARPS to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by ARPS pursuant to Section 8 above. In the case of any claims-made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Comprehensive Automobile Liability insurance with mlrnmum combined single limits for bodily injury and property damage of not less than three-hundred-thousand ($300,000.00) each occurrence and three-hundred-thousand ($300,000.00) aggregate with respect to each ARPS's owned, hired and non-owned vehicles assigned to or used in performance of the Scope of Work The policy shall contain a severability of interests provision. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by ARPS. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. ARPS shall be solely responsible for any deductible losses under any policy required above. Contracl for Services: Land Use Code Analysis - Alan Richman C:\homeIMoratoriumlAlan_contract.doc Page 3 .~-I. '___,"'_" (d) The certificate of insurance provided by the City shall be completed by ARPS's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identifY this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of ARPS to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by ARPS to City upon demand, or City may offset the cost of the premiums against monies due to ARPS from City. (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to ARPS for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide ARPS reasonable notice of any changes in its membership or participation in CIRSA. II. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered to the respective Contract Administrator listed below or mailed by certified mail return receipt requested, to: City of Aspen: Chris Bendon Alan Richman Planning Services: Alan Richman Contract for Services: Land Use Code Analysis - Alan Richman C:\homeIMoratoriumlAian_contract.doc Page 4 .,...I._.._m..... Community Development Director City of Aspen 130 South Galena Street Aspen, Colorado 81611 President PO Box Aspen, CO 81612 13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. ARPS agrees to meet all of the requirements of City's municipal code, Section 13- 98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by ARPS to which the same may apply and, until complete performance by ARPS of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement by City. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. 16. General Terms. (a) It is agreed that neither this agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This agreement shall be governed by the laws of the State of Colorado as from time to time in effect. Contract for Services: Land Use Code Analysis - Alan Richman C:lhomeIMoratoriumlAlan_contrac1.doct Page 5 IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date hereinafter written. ATTESTED BY: CITY OF ASPEN, COLORADO: Mayor Helen K. Klanderud Date: WITNESSED BY: Alan Richman Planning Services: Alan Richman, President Date: Contract for Services: Land Use Code Analysis - Alan Richman C:lhomeIMoratoriumlAlan_contract.doc Page 6 .I---~.- Certification and Supplemental Conditions to Contract for Services - Conformance with &8-17.5.101, et seQ. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bill 06-1343 that added a new article 17.5 to Title 8 of the Colorado Revised Statutes entitled "Illegal Aliens - Public Contracts for Services." This new law prohibits all state agencies and political subdivisions, including the City of Aspen, from knowingly employing or contracting with an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly employs or contracts with an illegal alien to perform work under the contract. The new law also requires that all contracts for services include certain specific language as set forth in the statutes. This Certification and Supplemental Conditions has been designed to comply with the requirements of this new law. Aoolicabilitv. The certification and supplemental conditions set forth herein shall be required to be executed by all persons having a public contract for services with the City of Aspen. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, J04th Congress, as amended, and expanded in Public Law 156, J08th Congress, as amended, that is administered by the United States Department of Homeland Security. "Contractor" means a person having a public contract for services with the City of Aspen. "Public Contract for Services" means any type of agreement, regardless of what the agreement may be called, between the City of Aspen and a Contractor for the procurement of services. It specifically means the contract or agreement referenced below. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. PURSUANT TO SECTION 8-17.5-101, C.R.S., et. seq.: By signing this document, Contractor certifies and represents that at this time: (i) Contractor does not knowingly employ or contract with an illegal alien; and (ii) Contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. _I__.~.. "'<0 The Public Contract for Services referenced below is hereby amended to include the following terms and conditions: I. Contractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 2. Contractor shall not enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 3. Contractor has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Contractor does not employ any illegal aliens; and if Contractor has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Contractor shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Contractor shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Contractor is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. 4. Contractor shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. 5. If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Contractor shall: (i) Notify such subcontractor and the City of Aspen within three days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Contractor shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. 6. Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5- 102 (5), C.R.S. 7. If Contractor violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Contractor's violation of Subsection 8- 17.5-102, C.R.S. Public Contract for Serviees: Land Use Code Planning Services - Alan Richman Contractor Signature: By: Alan Richman President Alan Richman Planning Services JPW- "aved: 8/3/2006-867-M:\city\cityatty\contract\forms\certification _ hb-06-1343.doc RESOLUTION ~ (Series of 2006) A RESOLUTION APPROVING A CONTRACTUAL AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN THE CITY OF ASPEN, COLORADO, AND CLARION ASSOCIATES FOR CONSULTANT SERVICES RELATED TO AMENDMENTS TO THE CITY OF ASPEN LAND USE CODE. WHEREAS, there has been submitted to the City Council an "Agreement for Professional Services" between the City of Aspen, Colorado, and Clarion Associates, a copy of which agreement is attached hereto and made a part thereof, for consulting service related to the Land Use Code. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1. That the City Council of the City of Aspen hereby approves the "Agreement for Professional Services" between the City of Aspen, Colorado, and Clarion Associates, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated: Helen Kalin Klanderud, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held August 14,2006. Kathryn S. Koch, City Clerk Attachments A - Proposed service contract with Clarion Associates. LAND USE CODE PLANNING SERVICES AGREEMENT FOR PROFESSIONAL SERVICES This Agreement made and entered on the date hereinafter stated, between the CITY OF ASPEN, Colorado, ("City") and Clarion Associates, LLC ("Clarion"). For and in consideration ofthe mutual covenants contained herein, the parties agree as follows: J. Scope of Work. CLARION shall perform in a competent and professional manner the Scope of Work as developed by the City of Aspen Community Development Department in coordination with Clarion Associates and Alan Richman Planning Services, as amended from time to time, and by this reference incorporated herein. 2. Completion. CLARION shall commence work immediately upon receipt of a written Notice to Proceed from the City and complete all phases of the Scope of Work as expeditiously as is consistent with professional skill and care and the orderly progress of the Work in a timely manner. The parties anticipate that all work pursuant to this agreement shall be completed no later than December 2006. Upon request of the City, CLARION shall submit, for the City's approval, a schedule for the performance of CLARION's services which shall be adjusted as required as the project proceeds, and which shall include allowances for periods of time required by the City's Contract Administrator for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the City, shall not, except for reasonable cause, be exceeded by CLARION. 3. Payment. In consideration of the work performed, City shall pay CLARION on a time and materials basis for all work performed. The rates for work performed by CLARION shall not exceed $250 per hour for work performed by a Principal Staff of Clarion, $100 per hour for work performed by Associate Staff of Clarion, and $55 per hour for work performed by Support Staff of Clarion. All materials and incidentals, including reasonable travel and lodging expenses, shall be billed at 100% of cost with no additional administration fee. Except as otherwise mutually agreed to by the parties, the total payments made to CLARION shall not initially exceed $50,000. CLARION shall submit, in timely fashion, invoices for work performed. The City shall review such invoices and, if they are considered incorrect or untimely, the City shall review the matter with CLARION within ten days from receipt of CLARION's bill. 4. Non-Assignability. Both parties recognize that this contract is one for personal services and cannot be transferred, assigned, or sublet by either party without prior written consent of the other. Authorized sub-contracting shall not relieve CLARION of any of the responsibilities or obligations under this agreement. CLARION shall be and remain solely responsible to the City for the negligent acts, errors, or omissions of any subcontractors officers, agents and employees, each of whom shall, for this purpose be deemed to be an agent or employee Contract for Services: Land Use Code Analysis - Clarion C:lhomeIMoratoriumIClarion_contractdoc Page] .~--I ._ of CLARION to the extent of the subcontract. The City shall not be obligated to payor be liable for payment of any sums due which may be due to any sub-contractor. It is understood CLARION may subcontract professional services and such subcontracting may be authorized by the City's Contract Administrator, named herein. 5. Termination. CLARION or the City may terminate this Agreement, without specifying the reason therefore, by giving two weeks notice, in writing, addressed to the other party, specifying the effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports or other material prepared by CLARION pursuant to this Agreement shall become the property of the City. CLARION retains the right to use such materials for business marketing purposes. Notwithstanding the above, CLARION shall not be relieved of any liability to the City for damages sustained by the City by virtue of any breach of this Agreement by CLARION, and the City may withhold any payments to CLARION for the purposes of set-off until such time as the exact amount of damages due the City from CLARION may be determined. 6. Covenant Against Contingent Fees. CLARION warrants that s/he has not employed or retained any company or person, other than a bona fide employee working for CLARION, to solicit or secure this contract, that s/he has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gifts or any other consideration contingent upon or resulting from the award or making of this contract. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result in, or be construed as establishing an employment relationship. CLARION shall be, and shall perform as, an independent Contractor who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent, employee, or servant of CLARION shall be, or shall be deemed to be, the employee, agent or servant of the City. City is interested only in the results obtained under this contract. The manner and means of conducting the work are under the sole control of CLARION. None of the benefits provided by City to its employees including, but not limited to, workers' compensation insurance and unemployment insurance, are available from City to the employees, agents or servants of CLARION. CLARION shall be solely and entirely responsible for its acts and for the acts of CLARION's agents, employ- ees, servants and subcontractors during the performance of this contract. CLARION shall indemnify City against all liability and loss in connection with, and shall assume full responsibility for payment of all federal, state and local taxes or contributions imposed or required under unemployment insurance, social security and income tax law, with respect to CLARION and/or CLARION's employees engaged in the performance of the services agreed to herein. 8. Indemnification. CLARION agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and Contract for Services: Land Use Code Analysis - Clarion C:lhomeIMoratoriumIClarion_contract.doc Page 2 demands, on account of injury, loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death, property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, if such injury, loss, or damage is caused in whole or in part by, or is claimed to be caused in whole or in part by, the negligent act, omission, error, professional error, mistake, or other fault of CLARION, any subcontractor of CLARION, or any officer, employee, representative, or agent of CLARION or of any subcontractor of CLARION, or which arises out of any workmen's compensation claim of any employee of CLARION or of any employee of any subcontractor of CLARION. CLARION agrees to investigate, handle, respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of CLARION, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment of a court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by the negligent act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse CLARION for the portion of the judgment attributable to such act, omission, or other fault of the City, its officers, or employees. 9. CLARION's Insurance. (a) CLARION agrees to procure and maintain, at its own expense, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by CLARION pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements imposed by this contract or by law. CLARION shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, duration, or types. (b) CLARION shall procure and maintain, and shall cause any subcontractor of CLARION to procure and maintain, the minimum insurance coverages listed below. Such coverages shall be procured and maintained with forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, claims, demands, and other obligations assumed by CLARION pursuant to Section 8 above. In the case of any claims- made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. (i) Workmen's Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers' Liability insurance with minimum limits of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) for each accident, ONE HUNDRED THOUSAND DOLLARS ($100,000.00) disease - policy limit, and ONE HUNDRED THOUSAND DOLLARS ($100,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workmen's Compensation requirements of this paragraph. Contract for Services: Land Use Code Analysis - Clarion C:\home\Moratorium\Clarion_contract.doc Page 3 (ii) Commercial General Liability insurance with minimum combined single limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage (including completed operations), personal injury (including coverage for contractual and employee acts), blanket contractual, independent contractors, products, and completed operations. The policy shall contain a severability of interests provision. (iii)Comprehensive Automobile Liability insurance with mlmmum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with respect to each CLARION's owned, hired and non- owned vehicles assigned to or used in performance of the Scope of Work. The policy shall contain a severability of interests provision. (iv)Professional Liability insurance with the minimum limits of ONE MILLION DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000) aggregate. (c) The policy or policies required above shall be endorsed to include the City and the City's officers and employees as additional insureds. Every policy required above shall be primary insurance, and any insurance carried by the City, its officers or employees, or carried by or provided through any insurance pool of the City, shall be excess and not contributory insurance to that provided by CLARION. No additional insured endorsement to the policy required above shall contain any exclusion for bodily injury or property damage arising from completed operations. CLARION shall be solely responsible for any deductible losses under any policy required above. (d) The certificate of insurance provided by the City shall be completed by CLARION's insurance agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. The certificate shall identifY this contract and shall provide that the coverages afforded under the policies shall not be canceled, terminated or materially changed until at least thirty (30) days prior written notice has been given to the City. (e) Failure on the part of CLARION to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which City may immediately terminate this contract, or at its discretion City may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by City shall be repaid by CLARION to City upon demand, or City may offset the cost of the premiums against monies due to CLARION from City. Contract for Services: Land Use Code Analysis - Clarion C:\home\Moratorium\Clarion_contract.doc Page 4 - .-I-..--~, (f) City reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) The parties hereto understand and agree that City is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations (presently $150,000.00 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Govemmentallmmunity Act, Section 24-10-101 et seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its employees. 10. City's Insurance. The parties hereto understand that the City is a member of the Colorado Intergovemmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Finance Department and are available to CLARION for inspection during normal business hours. City makes no representations whatsoever with respect to specific coverages offered by CIRSA. City shall provide CLARION reasonable notice of any changes in its membership or participation in CIRSA. II. Completeness of Agreement. It is expressly agreed that this agreement contains the entire undertaking of the parties relevant to the subject matter thereof and there are no verbal or written representations, agreements, warranties or promises pertaining to the project matter thereof not expressly incorporated in this writing. 12. Notice. Any written notices as called for herein may be hand delivered to the respective Contract Administrator listed below or mailed by certified mail return receipt requested, to: City of Aspen: Chris Bendon Community Development Director City of Aspen 130 South Galena Street Aspen, Colorado 81611 Clarion Associates: Chris Duerksen Principal Clarion Associates 1700 Broadway, Suite 400 Denver, CO 80290 303-830-2890 - office 303-860-1809 - fax 13. Non-Discrimination. No discrimination because of race, color, creed, sex, marital status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap, or religion shall be made in the employment of persons to perform services under this contract. CLARION agrees to meet all of the requirements of City's municipal code, Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or Contract for Services: Land Use Code Analysis - Clarion C:lhomeIMoratoriumIClarlon_contract.doc Page 5 condition of this Agreement can be waived except by the written consent of the City, and forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any term, covenant, or condition to be performed by CLARION to which the same may apply and, until complete performance by CLARION of said term, covenant or condition, the City shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Agreement bv City. This agreement shall be binding upon all parties hereto and their respective heirs, executors, administrators, successors, and assigns. 16. General Terms. (a) It is agreed that neither this agreement nor any of its terms, provisions, conditions, representations or covenants can be modified, changed, terminated or amended, waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this agreement shall be held invalid, illegal or unenforceable it shall not affect or impair the validity, legality or enforceability of any other provision. (c) The parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained herein at the time of the execution hereof and that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This agreement shall be governed by the laws of the State of Colorado as from time to time in effect. Contract for Services: Land Use Code Analysis - Clarion C:\home\MoratoriumIClarion_contract.doc Page 6 IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreement in three copies each of which shall be deemed an original on the date hereinafter written. ATTESTED BY: CITY OF ASPEN, COLORADO: Mayor Helen K. Klanderud Date: WITNESSED BY: Associates, LL ~ Chris Duer sen, Princj)?,al Date: K' /" / 0(;, . . Contract for Services: Land Use Code Analysis - Clarion C:lhomeIMoratoriumIClarion_contract.doc Page 7 .1 "---,,-------- Certification and Supplemental Conditions to Contract for Services - Conformance with &8-17.5.101. et seQ. Purpose. During the 2006 Colorado legislative session, the Legislature passed House Bill 06- 1343 that added a new article 17.5 to Title 8 of the Colorado Revised Statutes entitled "Illegal Aliens - Public Contracts for Services." This new law prohibits all state agencies and political subdivisions, including the City of Aspen, from knowingly employing or contracting with an illegal alien to perform work under a contract, or to knowingly contract with a subcontractor who knowingly employs or contracts with an illegal alien to perform work under the contract. The new law also requires that all contracts for services include certain specific language as set forth in the statutes. This Certification and Supplemental Conditions has been designed to comply with the requirements of this new law. Alm.licabilitv. The certification and supplemental conditions set forth herein shall be required to be executed by all persons having a public contract for services with the City of Aspen. Definitions. The following terms are defined in the new law and by this reference are incorporated herein and in any contract for services entered into with the City of Aspen. "Basic Pilot Program" means the basic pilot employment verification program created in Public Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security. "Contractor" means a person having a public contract for services with the City of Aspen. "Public Contract for Services" means any type of agreement, regardless of what the agreement may be called, between the City of Aspen and a Contractor for the procurement of services. It specifically means the contract or agreement referenced below. "Services" means the furnishing of labor, time, or effort by a Contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance. PURSUANT TO SECTION 8-17.5-101, C.R.S., et. seq.: By signing this document, Contractor certifies and represents that at this time: (i) Contractor does not knowingly employ or contract with an illegal alien; and (ii) Contractor has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. The Public Contract for Services referenced below is hereby amended to include the following terms and conditions: I. Contractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 2. Contractor shall not enter into a contract with a subcontractor that fails to certify to the Contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the Public Contract for Services. 3. Contractor has verified or has attempted to verify through participation in the Federal Basic Pilot Program that Contractor does not employ any illegal aliens; and if Contractor has not been accepted into the Federal Basic Pilot Program prior to entering into the Public Contract for Services, Contractor shall forthwith apply to participate in the Federal Basic Pilot Program and shall in writing verify such application within five (5) days of the date of the Public Contract. Contractor shall continue to apply to participate in the Federal Basic Pilot Program and shall in writing verify same every three (3) calendar months thereafter, until Contractor is accepted or the public contract for services has been completed, whichever is earlier. The requirements of this section shall not be required or effective if the Federal Basic Pilot Program is discontinued. 4. Contractor shall not use the Basic Pilot Program procedures to undertake pre-employment screening of job applicants while the Public Contract for Services is being performed. 5. If Contractor obtains actual knowledge that a subcontractor performing work under the Public Contract for Services knowingly employs or contracts with an illegal alien, Contractor shall: (i) Notify such subcontractor and the City of Aspen within three days that Contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (ii) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to this section the subcontractor does not cease employing or contracting with the illegal alien; except that Contractor shall not terminate the Public Contract for Services with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. 6. Contractor shall comply with any reasonable request by the Colorado Department of Labor and Employment made in the course of an investigation that the Colorado Department of Labor and Employment undertakes or is undertaking pursuant to the authority established in Subsection 8-17.5- 102 (5), C.R.S. 7. If Contractor violates any provision of the Public Contract for Services pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of Aspen may terminate the Public Contract for Services. If the Public Contract for Services is so terminated, Contractor shall be liable for actual and consequential damages to the City of Aspen arising out of Contractor's violation of Subsection 8- 17.5-102, C.R.S. Public Contract for Services: ervices - Clarion Associates Contractor Signature: By: Chris Duerksen Managing Partner Clarion Associates JPW- saved; 8/312006-867-M:\city\cityatty\contract\forms\certification - hb-06-1343.doc 3r..d. MEMORANDUM TO: Mayor and Council FROM: Phil Overeynder, Public Works Director CC: Steve Barwick, City Manager CC: John Worcester, City Attorney DATE: July 31, 2006 RE: Additional Projects added to MEAN Energy Resource Pooling Agreement WORK SESSION SUMMARY: On August 1 Council held a work session that included participation of MEAN staff. Following discussion of the additional projects and the contractual options available to the City, Council directed staff to place the attached Resolution on the Consent Agenda for consideration at the August 14, 2006 meeting. SUMMARY: The Board of Directors of the Municipal Energy Agency of Nebraska (MEAN) has added two new energy resources to the project list under which the City of Aspen purchases electric power under an existing Electrical Resources Pooling Agreement (ERPA). Aspen must determine if it either wishes to financially participate in both projects or Aspen's status will be changed to a "contract Purchaser" under the terms of the exiting ERP A agreement. Bill Leung, Chief Operating Officer for MEAN attended the work session to describe the new projects and how the existing contract provisions apply to the addition of new energy source projects, including one coal fired project and the wind energy project both located in Nebraska. PREVIOUS COUNCIL ACTION: Council approved the ERPA agreement in 1984. Council has generally been supportive of the addition of wind energy resources under the pooling agreement but has had discussions with MEAN in past regarding the addition of new coal fired resources. The other MEAN participants support the addition of power from both new projects. DISCUSSION: The proposed MEAN projects are described in detail in the attachment and consist of approximately an 80 MW share of the Whelan Energy Center coal fired generation unit and 7MW share of the Ainsworth Wind Energy Facility, both located in Nebraska. Both of these projects represent a significant fmancial commitment on the part of MEAN, which in turn are recovered through future purchases of power by 1 MEAN participants in the power pool agreement including the City of Aspen. The City's total power requirements in relative terms are approximately 14MW. ALTERNATIVES: The existing ERPA agreement provides a mechanism for adding new resources. Under these contract terms, the City must decide whether to become a participant in these projects or accept a change in the status of existing contract purchases through MEAN. The implication of change in status was discussed at the work session. RECOMMENDATION: Staff recommends adoption of the attached resolution. RECOMMENDED MOTION: I move to approve Resolution 0:3 CITY MANAGER COMMENTS: ~~ --r-f:. ~cf- ( ~ r~r -JJ'rJYK ~ -f:n.- . 2 RESOLUTION # in!j (Series of20or A RESOLUTION APPROVING AN AMENDMENT TO EXHIBIT D OF AN AGREEMENT BETWEEN THE CITY OF ASPEN, COLORADO, AND THE MUNICIPAL ENERGY AGENCY OF NEBRASKA (MEAN), SETTING FORTH AN EXPANDED PROJECT LIST UNDER THE EXISTING ENERGY RESOURCE POOLING AGREEMENT AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AMENDMENT WHEREAS, there has been submitted to the City Council an addition to Exhibit D of the Energy Resource Pooling Agreement between the City of Aspen, Colorado, and MEAN, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section I That the City Council of the City of Aspen hereby affirms its intent to participate in two additional energy projects as defined in amended Exhibit D of the Energy Resources Pooling agreement between the City of Aspen, Colorado and MEAN, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said A.mendment and consents to the inclusion of two additional projects on behalf of the City of Aspen. Dated: Helen Kalin K1anderud, Mayor I, Kathryn S. Koch, duly appointed and acting City Clerk do certifY that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held Kathryn S. Koch, City Clerk .1, NOTICE TO SERVICE SCHEDULE M PARTICIPANTS @(Q)~ NOTICE IS HEREBY GIVEN, that on May 13, 2004, the Board of Directors of the Municipal Energy Agency of Nebraska (MEAN) approved entering into a Participation Power Agreement with Nebraska Public Power District to purchase 11.78% (7 MW) of wind-generated energy from the Ainsworth Wind Energy Facility, as described in paragraph A.I. below. FURTHERMORE, that on May 25,2005, the MEAN Board of Directors approved entering into a Participation Agreement with the Public Power Generation Agency (PPGA) to purchase 36.36% (approximately 80 MW) entitlement share from Whelan Energy Center Unit 2, as described in paragraph B.I. below. FURTHERMORE, pursuant to Section 3.01(c) of the Service Schedule M contract of the Electrical Resources Pooling Agreement (ERPA), as referenced in MEAN's Power Supply System Revenue Bond Resolution, adopted August 21, 2003: If at any time MEAN determines it necessary to commit to an additional Project, it will advise the City in writing of its intention to so commit, the nature of such Project, the estimated time such Project is scheduled for commercial operation and the aggregate principal amount of Bonds, if any, estimated to be issued in connection therewith. Exhibit D hereto shall be amended to include such Project unless the City elects to become a Contract Purchaser as hereinafter provided. After such notification, the City will have sixty (60) days to advise MEAN by written notice that it has determined, by appropriate resolution, that it does not want to participate in such Project. Upon such notification, the City shall continue to be a Requirements Purchaser until the latest date such Project or any other Project which constitutes a Related Project for the City commences commercial operation, whereupon City shall become a Contractor Purchaser, and its obligation hereunder to purchase, and MEAN's obligation to supply, electric power and energy, shall thereafter be at a Contract Demand equal to the Firm Power Requirement for the City at the date such Project commences commercial operation. FURTHERMORE, the MEAN Board of Directors and Management Committee adopted a Resolution on May 18, 2006, which determined it necessary to commit to additional Projects, referred to as the Ainsworth Wind Energy Facility and Whelan Energy Center Unit 2 Projects, as described below. THEREFORE, notice is hereby given to all Service Schedule M Participants as follows: A. Ainsworth Wind Energy Facility I. Nature of Project: Participation in the Ainsworth Wind Energy Facility (hereinafter referred to as "Ainsworth Wind Project"), which is a wind-generated electric facility consisting of 36 wind turbines (rated at 1.65 MW each) for a net generating capability of approximately 60 MW (60,000 kW), located in Brown County, Nebraska. Page I Nebraska Public Power District (NPPD) owns and operates the Ainsworth Wind Project. Other participants purchasing wind-generated energy from the Ainsworth Wind Project includes: Municipal Energy Agency of Nebraska (7 MW), Grand Island Utilities (1 MW), Omaha Public Power District (10 MW), and Jacksonville Electric Authority of Jacksonville, Florida (10 MW). NPPD and its wholesale customers share the remaining 32 MW. 2. Commercial Operation: The Ainsworth Wind Project went into commercial operation on October I, 2005. The expected useful life of the Project, with regular maintenance, replacement, and renewals exceeds 30 years. 3. Principal Amount of Bonds: Not applicable. 4. Exhibit D: Amend Exhibit D of the Service Schedule M contract to add the Ainsworth Wind Project. B. Whelan Energy Center Unit 2 Nature of Project: Participation in Whelan Energy Center Unit 2 (hereinafter referred to as "WEC 2 Project''), which is a new coal-fired electric generating facility, along with associated transmission and interconnection facilities, located on the site of the existing Whelan Energy Center, which is approximately two miles east of Hastings, Nebraska. WEC 2 is intended to produce no less than 220 net megawatts (220 MW) using conventional sub-critical, pulverized coal boiler technology while burning sub- bituminous coal typically found in the Powder River Basin area of northeast Wyoming. The WEC 2 Project will include all property, facilities, structures, land, water, fuel, and any rights or interests therein, together with any other property, facilities, structures, land, water, fuel, and any rights or interests related to or in the furtherance of the foregoing, whenever acquired. Participants of the WEC 2 Project include: Municipal Energy Agency of Nebraska (36.36%); Heartland Consumers Power District (36.36%); Hastings Utilities, acting for and on behalf of the City of Hastings, Nebraska (15.91 %); Grand Island Utilities, acting for and on behalf of the City of Grand Island, Nebraska (6.82%); and Nebraska City Utilities, acting for and on behalf of the City of Grand Island, Nebraska (4.55%). I. Estimated Time WEC 2 Project is Scheduled for Commercial Operation: Construction of the WEC 2 Project is scheduled to begin in 2007, with an anticipated commercial operation date of early 2011. The expected useful life of the WEC 2 Project, with regular maintenance, replacement, and renewals exceeds 50 years. 2. Principal Amount of Bonds: Not applicable. Page 2 I . ~ ______ 3. Exhibit D: Amend Exhibit D of the Service Schedule M contract to add the WEC 2 Project. The City of Aspen has sixty (60) days from receipt of this Notice to advise MEAN by written notice that it has determined, by appropriate resolution, that: A. The City of Aspen intends to participate in these Projects and the City consents to amending Exhibit D to include the Projects. (See attached Resolution.) OR B. The City of Aspen does not wish to participate in these Projects and the City intends to become a Contract Purchaser, pursuant to Section 3.01 (c) of the SSM. DATED: June30. 2006 d?G~:;Jer~~ Executive Director Municipal Energy Agency of Nebraska Page 3 . EXHIBIT D RELATED PROJECTS Dated: May 18, 2006 Not to exceed 1.70% of the output of Laramie River Station (approximately 28 MW) through Lincoln Electric System Not to exceed 10 MW of Hastings Energy Center #1 Up to 30 MW of electric generation facility consisting of wind turbines in Kimball County, Nebraska 6.67% joint ownership interest in Council Bluffs Energy Center Unit 4 (approximately 50 MW) 11.78% participation purchase in Ainsworth Wind Energy Facility (approximately 7 MW) 36.36% entitlement share in Whelan Energy Center Unit 2 (approximately 80 MW) Approved Mav 18. 2006 by MEAN Board of Directors Supersedes Exhibit D as approved Julv 18. 2002 Date Sent to Service Schedule M Participants June 30. 2006 Page 4 ~.. MEMORANDUM TO: Mayor and City Council FROM: Kathryn Koch, City Clerk DATE: July 31, 2006 RE: Appointment of Alternate Member to MEAN David Cox, electric department, served as the city's alternate member to the Municipal Energy Agency of Nebraska's board of directors. David Cox no longer works for the city, and an alternate member needs to be appointed. Staff is recommending John Hines of the water department be appointed. By adopting the consent calendar, Council is approving the appointment of John Hines at alternate member to the MEAN Board. ~--"~,,--- - ----------1-- MEMORANDUM iLf. TO: CC: Mayor and City Council Steve Barwick, Randy Ready, John Worcester FROM: THRU: Dan Richardson, Global Warming Project Manager~ Chris Bendon, Community Development Directo~ Lee Cassin, Environmental Health Director V'/ DATE OF MEMO: MEETING DATE: August 7th, 2006 August 14th, 2006 RE: ATTACHMENT: Endorsement oft~ l' '25 Initiative Resolution No. ~ Series 2006 SUMMARY: Staff is requesting that City Council adopt the attached resolution, endorsing 25x'25. PREVIOUS COUNCIL ACTION: None. BACKGROUND: 25x'25 is an initiative developed by the National Farm Bureau calling for a renewable energy (wind, biofuels, etc.) goal of producing 25% of the nation's energy supply from the nation's farms and rural communities by 2025. The 25x'25 resolution builds on a broad and politically influential coalition including agriculture, industry, and environmental leaders, as well as several governors and state legislatures, and hopefully, the City of Aspen. Additional information is available at www.agenergv.info. As an footnote, on June 7th, Rep. Udall (D-CO) joined a bipartisan group of senators and U.S. representatives on Capitol Hill in introducing a congressional resolution that is virtually identical to the resolution before you. DISCUSSION: At the 2006 Aspen Renewable Energy Day (AREDA Y) event, Chip Comins, the event organizer, is hoping to launch a regional and national endorsement of the 25x'25 initiative by US cities with Aspen being the first to endorse, continuing in the same vein Aspen established when it became the first city to sign the Energy Independence Day Campaign's Declaration of Energy Independence (EIDC) two years ago that led to 35 other cities following suit. Endorsement is also being considered by the City of Boulder. Endorsing this initiative does not bind or commit the City to anything beyond what has been committed to date. FINANCIAL IMPLICATIONS: None. ENVIRONMENTAL IMPLICATIONS: Endorsing 25 x '25 will add yet another voice supporting the agricultural and forestry sectors' contribution to renewable energy and energy independence. RECOMMENDATION: To adopt Resolution No.!e4, Series 2006, endorsing 25 x '25. AL TERNA TIVES: I. Not endorse 25 x '25. PROPOSED MOTION: I move to adopt Resolution No. ~ Series 2006, endorsing 25 x '25. CITY MANAGER COMMENTS: ~~ ... -.J ~ 1 I..~--..."- RESOLUTION NO. f...p' L Series of2oo6 l' A RESOLUTION OF THE CITY OF ASPEN, COLORADO, ENDORSING 25 x '25. WHEREAS, global warming, caused primarily by the burning of fossil fuels, is a major threat to the prosperity of Aspen; WHEREAS, current and future risks to U.S. energy security are mounting; WHEREAS, domestic and global energy demands are growing exponentially; WHEREAS, environmental and health concerns and risks associated with fossil based fuel sources are escalating; WHEREAS, solar, wind and bio energy and biofuels can be captured and/or produced on the land mass managed by U.S. agriculture and forest landowners, and WHEREAS, technology and production capabilities allow America's farmers, ranchers and forest landowners to playa major role in insuring a fully sustainable U.S. energy system; NOW, WHEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT: Section One. the City of Aspen endorses the vision of25 x '25 and commits to work collaboratively with renewable energy champions to: . Further explore and define the overarching contribution which the agricultural and forestry sectors can make as producers of energy, and . Develop an action plan to bring this vision to life. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the day of ,2006. Helen Kalin Klanderud, Mayor I-~..~... I, Kathryn S. Koch, duly appointed and acting City Clerk do certifY that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held ,2006. Kathryn S. Koch, City Clerk -~_._---_.._-------~I~---~-...._-_.._- ViLa- MEMORANDUM TO: Mayor and City Council FROM: Phil Overeynder and Cynthia F. Covell RE: North Spruce Street Water Service Agreement (Warren Lichtenstein) DATE: July 18, 2006 Backf!round The City is party to a 1997 water service agreement by which it provides treated water to the North Spruce Street private water system. This system serves several homes on North Spruce Street. The City does not own the system; it does not meet the City's standards and portions of it are not located in public rights of way. Water is pumped up to the North Spruce water main from the Williams Ranch pump station. The initial water service agreement authorized the City to supply water for no more than 10.8 ECUs. The agreement was amended several times to add additional homes on North Spruce Street, and the City has now agreed to provide water for 25.6 ECUs. After the original water service agreement was executed, the North Spruce Street Association constructed the water main, and obtained the homeowners' agreement that the Association would authorize any additional connections, and would seek recoupment of a portion of its construction costs from new connections. We were given to understand that the North Spruce Street Association was an association that included all of the homeowners. Any additional connections would also require City approval and amendment ofthe water service agreement. The City Water Department subsequently learned that (I) the North Spruce Street Association was a private, for-profit entity that did not include all of the homeowners; and (2) the Williams Ranch pump station may be unable to safely accommodate any additional pumping to the North Spruce water main. The Water Department advised North Spruce Street Association, and the North Spruce Homeowners Association, and the Williams Ranch and Silverlode Homeowners Associations (which own and use the pump station), that the water department would not recommend to City Council any further amendments of the Water Service Agreement I until it could be shown that the pump station could safely deliver any additional amounts of water requested. Mr. Lichtenstein's Request. Mr. Lichtenstein owns 777 Spruce Street, a property authorized to receive 3.0 ECUs pursuant to the original 1997 water service agreement. He is building an new home and wishes to increase his water demand to 5.5 ECUs. This requires amendment of the Water Service Agreement. He has also drilled a well on the property, but it is not in use. If he is unable to secure an amendment to the Water Service Agreement, he plans to disconnect from the North Spruce water main, and use the well to provide water service to the property. Thus the Water Service Agreement must be amended either (I) to authorize the additional 2.5 ECUs Mr. Lichtenstein requests, or (2) to authorize disconnection of 777 Spruce Street from the private water system, and from municipal service. Mr. Lichtenstein has provided engineering reports from Resource Engineering Inc. dated January 28, 2006 and February 10, 2006, which conclude that the pump station can adequately accommodate the additional 2.5 ECUs Mr. Lichtenstein requests, with certain upgrades to the pumps. Mr. Lichtenstein contributed to the cost of the pump station upgrades, and those upgrades are scheduled to be completed by mid-August. The North Spruce Street Association, North Spruce Homeowners Association, and the Williams Ranch and Silver Lode Homeowners Association have consented to an additional 2.5 ECUs for this property. Therefore, the Water Department's prerequisites have been met. Recommendation. The Water Department recommends that the water service agreement be amended to include the additional 2.5 ECUs requested by Mr. Lichtenstein, with the City's obligation to provide this additional service expressly contingent upon the following: (I) Proof of abandonment of the well in accordance with all State requirements; (2) Completion ofthe pump station upgrades described in the Resource Engineering report; and (3) Payment of all required tap fees, well system development fees, payments in lieu of water rights, and utility hook-up charges. A proposed Fourth Amendment to Water Service Agreement is attached, together with a form of ordinance. 2 ORDINANCE NO. ~~~ Series of 2006 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A FOURTH AMENDMENT TO THE WATER SERVICE AGREEMENT WITH DR. RICHARD C. PHILLIPS, RAYMOND N. AUGER, AND ALBERT G. TIMROTH AND DONNA M. TIMROTH, AS AMENDED BY THE FIRST, SECOND AND THIRD AMENDMENTS THERETO, FOR PROVISION OF TREATED WATER SERVICE TO A PRIVATE WATER SYSTEM, TO AUTHORIZE THE CITY TO PROVIDE AN ADDITIONAL 2.5 ECUS TO 777 NORTH SPRUCE STREET. WHEREAS, City Council approved ordinance No. 41, Series of 1997, which authorizes a Water Service Agreement whereby City treated water service was extended to a private water system to serve properties on North Spruce Street then owned by Dr. Richard C. Phillips, Raymond N. Auger, Albert G. Timroth and Donna M. Timroth, and City Council approved amendments to the Water Service Agreement pursuant to Ordinance No. 27, Series of 1998, Ordinance No.8, Series of 1999, and Ordinance No. 32, Series of 2000, to allow the private water system to serve additional specified properties on North Spruce Street; and WHEREAS, the persons whose lots have been approved for service pursuant to the Water Service Agreement and its Amendments are referred to the Owners; and WHEREAS, the North Spruce Street Association is authorized to act on behalf of the Owners; and WHEREAS, Warren Lichtenstein, owner of 777 North Spruce Street, a property served pursuant to the Water Service Agreement for a maximum of3.0 ECUS, has requested 2.5 ECUs of additional water service to said property, for a total of 5.5 ECUs; and WHEREAS, Mr. Lichtenstein and the North Spruce Street Association have requested that the Water Service Agreement be amended a fourth time to permit service to an additional 2.5 ECUs for 777 North Spruce Street; and WHEREAS, the City Council has had an opportunity to revIew with City staff the proposed additional service of 2. 5 ECUs to provide a total of 5.5 ECUs to 777 North Spruce Street, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, THAT Section I. The City Council of the City of Aspen hereby determines that the proposed provision of City water to an additional 2.5 ECUs to serve 777 North Spruce Street, which is already served by the North Spruce Street private water system, is in the best interest ofthe City and the City Council therefore agrees to allow additional City water service to the North Spruce Street private water system to serve an additional 2.5 ECUs at 777 North Spruce Street on the terms and conditions set forth in the Fourth Amendment to Water Service Agreement attached hereto and incorporated herein by reference. Section 2. This ordinance shall not have any effect on existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 4. A public hearing on the ordinance shall be held on the day of , 2006, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City Council of the City of Aspen on the _ day of ,2006. Mayor Attest: City Clerk FINALLY ADOPTED, PASSED AND APPROVED THIS ,2006. DAY OF Mayor Attest: City Clerk F:\Clicnt Files\Aspen\North Spruce WSA\ordinance re fourth amend. wpd FOURTH AMENDMENT TO CITY OF ASPEN WATER SERVICE AGREEMENT This Fourth Amendment is made , 2006, in Aspen, Colorado, to that certain Water Service Agreement dated December 15,1997, as amended by the First, Second and Third Amendments thereto. The parties to this Fourth Amendment are the City of Aspen, a Colorado municipal corporation and home rule city, whose address is 130 South Galena Street, Aspen, CO, 81611 ("City"), the North Spruce Street Association, whose address is c/o Camilla Auger, 225 North Mill Street, Suite 208, Aspen, CO 81611, and which is authorized to act on behalf those persons identified as "Owners" in the Water Service Agreement and the Amendments thereto, and Warren Lichtenstein ("Lichtenstein"), whose address is 777 North Spruce Street, Aspen, CO 81611. In consideration ofthe mutual promises and covenants set forth below, the parties agree as follows: 1. The above-described Water Service Agreement and Amendments were recorded with the Pitkin County Recorder as follows: Name of Agreement Date Recorded Reception Number Water Service Agreement OS/27/1998 417351 First Amendment and 03/08/1999 428533 Pretapping Agreement Second Amendment 06/30/2000 444698 Third Amendment 11113/2000 448746 The Water Service Agreement and all amendments are herein collectively referred to as the "North Spruce Street Water Service Agreement." 2. The North Spruce Street Water Service Agreement set forth the terms and condItions under which the City agreed to provide municipal water service to a private water system to be constructed, operated, owned, maintained, repaired and replaced by the Owners and their successors. The Pretapping Agreement authorized certain connections of individual service lines to the water main in advance of connection of the service lines to residential structures. 3. Paragraph 11 of the original Water Service Agreement provides that others may connect to the private water system upon amendment of the North Spruce Street Water Service Agreement and payment by such parties of any recoupment charges imposed by Owners in addition to tap fees and other payments required to be made to the City pursuant to the North Spruce Street Water Service Agreement. Paragraph 8 ofthe First Amendment authorizes the North Spruce Street Association to approve any additional connections to the private water system. The Second and Third amendments authorized connection of certain additional parcels to the private water system. 4. Lichtenstein is the owner of the property located at 777 North Spruce Street (the "Subject Property.") The Subject Property was included in the original Water Service Agreement, and 3.0 ECUs were authorized for service to the Subject Property. 5. Lichtenstein has requested and obtained permission from the North Spruce Street Association to add to 2.5 ECUs to the service presently provided to the Subject Property so that a total of 5.5 ECUs may be served by the private water system. In addition, Lichtenstein has provided to the City engineering reports from Resource Engineering, Inc. dated January 28, 2006 and February 10, 2006, which state that, with certain pump upgrades, such service can be safely provided by the Williams Ranch Pump Station, and has obtained consent of the Silverlode Homeowners Association (which owns the Williams Ranch Booster Pump Station) and the North Spruce Homeowners Association, to this increased service. Lichtenstein has also agreed to pay to the City any increased tap fee, well system development fee, and payment in lieu of water rights and utility connection charges required by the City in order to add the additional 2.5 ECUs. 6. Lichtenstein, by executing this Amendment, confirms, on behalf of himself, his heirs, successors and assigns, that he is bound as the Owner of the Subject Property to all ofthe terms and conditions of the North Spruce Street Water Service agreement. 7. The North Spruce Street Association and the City hereby agree that water service to an additional 2.5 ECUs will be provided to the Subject Property pursuant to the North Spruce Street Water Service Agreement, for a total commitment to the Subject Property of 5.5 ECUs, and that Lichtenstein, his heirs, successors and assigns as Owner of the Subject Property, will continue to be subject to, and benefit from, all of the terms, conditions, benefits and burdens of the North Spruce Street Water Service Agreement, provided, however, that the City's obligation to provide additional water service to the Subject Property hereunder is expressly conditioned upon satisfaction of the following conditions prior to issuance of a Utility Connection Permit for said additional service: (I) Proof of abandonment of the well located on the Subject Property in accordance with all applicable State laws, rules and regulations; (2) Proof that the pump station upgrades to the Williams Ranch Pump Station, as recommended in the Report of Resource engineering dated , have been completed; and (3) Payment to the City of all required tap fees, well system development fees, payments in lieu of water rights, and utility connection charges. 8. The City agrees that, as a result of this Amendment, it will provide additional treated water to the private water system in an amount not to exceed 2.5 ECUs (in addition to the 3.0 ECUs already provided by the City for the Subject Property), or a maximum increase of 1.06 acre- feet per year. The amount of water to be provided to the private water system pursuant to paragraph I of the original North Spruce Street Water Service Agreement is therefore an amount of water sufficient to serve 28.1 ECUs with a maximum total of 11.06 acre-feet of water per year. 9. Lichtenstein's address for purposes of paragraph 29 ofthe original Water Service Agreement is Warren Lichtenstein 777 North Spruce Street Aspen, CO 81611. Said address may be changed as provided in the North Spruce Street Water Service Agreement. 10. This Fourth Amendment shall be recorded at the expense of the North Spruce Street Association, and along with the North Spruce Street Water Service agreement, shall constitute covenants running with the land. II. Except as herein specifically amended, the North Spruce Street Water Service Agreement remains in full force and effect. Dated: CITY OF ASPEN ATTEST: Mayor City Clerk NORTH SPRUCE STREET ASSOCIATION By Title: Warren Lichtenstein ElI a.. MEMORANDUM Mayor Klanderud and City Council Chris Bendon, Community Development Director ~ TO: TURU: FROM: James Lindt, Senior'Planner'0L.. RE: Second Reading of Ordinance No. 24, Series of 2006 -1001 Ute Avenue Subdivision, Consolidated Conceptual/Final PUD, Growth Management Review for Preservation of Significant Open Space Parcels- Continued Public Hearinl! DATE: August 14,2006 ApPLICANT /OWNER: Leathem Stearn REPRESENT A TIYE: Davis Horn Incorporated. LOCATION: 1001 Ute Avenue. CURRENT ZONING: Northernmost 2.7 acres is located in City's R-15 Zoning w/ a PUD overlay. Southernmost 4.1 acres is located in Pitkin County's AFR-JO Zoning. SUMMARY: The Applicant requests subdivision approval to divide the existing parcel into six (6) separate parcels; two (2) of which are to contain single-family residences, one of which is to contain a "for sale", Category 4 affordable housing unit, one of which is to contain the existing tennis courts used by the Gant, one of which is to contain a common driveway, and the other parcel is to be common open space. Photo Above: Property as seen from Ute A venue. PLANNING AND ZONING COMMISSION RECOMMENDATION: The Planning and Zoning Commission unanimously recommended approval of the land use actions being requested. STAFF RECOMMENDATION: Staff recommends that City Council approve the proposed ordinance, which includes proposed design controls on the free-market residential units to reduce their apparent massing from Ute A venue. LAND USE REQUESTS: The Applicant, Leathem Stearn, is requesting the following land use actions to develop two (2) single-family residences and a "for sale" Category 4 affordable housing unit on the subject property: . Subdivision . Consolidated Conceptual/Final PUD . Administrative Growth Management Review for Detached Single-family Unit . Growth Management Review for the Development of Affordable Housing . Growth Management Review for Preservation of Significant Open Space Parcels . 8040 Greenline Review REVIEW PROCEDURE: The Planning and Zoning Commission granted approval of 8040 GreenJine Review and a Growth Management Review for the Development of Affordable Housing. City Council shall be the final review authority on the Subdivision, Consolidated PUD, and Growth Management Review for the Preservation of Significant Open Space Parcel requests after considering a recommendation from the Planning and Zoning Commission. PROJECT SUMMARY: The Applicant, Leathem Stearn, requests Subdivision, Consolidated Conceptual/Final PUD, and associated Growth Management approvals to subdivide a 6.8 acre metes and bounds parcel at 1001 Ute Avenue into two (2) parcels (24,851 and 30,058 square feet respectively) of land for the construction of two (2) single-family residences of 5,040 square feet of FAR each, a parcel for the development of a "for sale", Category 4 affordable housing unit, a 24,677 square foot parcel that includes the tennis courts that are leased by the Gant on a long tern! basis, two (2) other common open space areas, and an open space parcel of approximately 178,000 square feet on which a conservation easement is to be placed. The map below identifies the different parcels that are proposed: The fathering parcel to be subdivided is located in both the City and the County. The proposed 178,000 square foot parcel that is to contain a conservation easement is located 2 entirely outside of the City limits. Subdivision review is required to divide the fathering parcel into the proposed parcels pursuant to Land Use Code Section 26.480, Subdivision. Additionally, the Applicant requires PUD approval because all portions of the fathering parcel that are located within the City limits contain a PUD overlay. The Applicant has requested consolidation of the Conceptual and Final PUD reviews, which had been granted by the Community Development Director pursuant to Land Use Code Section 26.445.030(B)(2), Consolidated Conceptual and Final Review. finding that the proposal has limited issues that would be typically addressed in the PUD process. A growth management approval to obtain one of the two (2) proposed single-family residential development allotments in exchange for placing a conservation easement on the area of land in the County of 178,000 square feet pursuant to Land Use Code Section 26.470.040(D)(4), Growth Management Review: Preservation of Significant Open Space Parcels, is also required. The other growth management allotment for the second single- family residence in the proposed subdivision requires an administrative growth management review for the development of a detached single-family dwelling unit pursuant to Land Use Code Section 26.470.040(B)(I), Administrative Growth Management Review: Detached single~ramily or duplex dwelling units. And finally, 8040 Greenline approval and the approval of a Growth Management review for the Development of Affordable Housing was granted by the Planning and Zoning Commission to allow for the installation of the utilities and driveway improvements to the proposed single-family parcels since they are located within 150 feet of the elevation of 8040 feet above sea level and for the construction of the proposed affordable housing unit. SUMMARY OF LAST MEETING: At the last meeting on July 24th, Staff and the Applicant presented changes to the landscaping plan to meet the Colorado defensible space standards and discussed the rockfall/avalanche mitigation requirements. There was also a significant discussion about the proposed floor area for each of the free-market residential dwelling units related to whether the proposed floor area yields a development that is compatible with the other development that exists in the surrounding neighborhood. Staff supported a reduction in the allowable floor area to reduce the possible visual impact of the structures from Ute A venue and a majority of City Council seemed to agree that a reduction was warranted given the conceptual sketches of the residences that were presented at the meeting. The hearing was finally continued to see if the Applicant could work with Staff to reduce the apparent mass of the conceptual structure plans without the need for eliminating allowable floor area from the proposed 5,040 square feet each. STAFF COMMENTS: Staff and the Applicant have met since the last meeting to discuss methods of reducing the apparent mass of the structures. Staff feels that the simplest tangible way to reduce the apparent massing is to ask for a reduction in the allowable floor area. However, as was discussed at the end of the last meeting, the allowable floor area of a structure is just one of several factors that play into the apparent massing of the structure. The Applicant has revised the conceptual massing of the proposed single-family residences by altering some of the other factors that contribute to the massing of the building. The chart that is attached as Exhibit "A" shows the surface area of the front fa~ades of the conceptual design presented at the last meeting and compares it to the surface area of the front fa..ades of the revised design. Photo simulations showing the conceptual 3 massing wiJI also be presented at the public hearing so that Council can compare the massing of the revised conceptual design with that of the massing shown in the photo simulations that were presented at the last meeting. The revised conceptual designs push more of the square footage to the back of the structures in order to provide for smaller (less front fa~ade width), less massive facades facing Ute Avenue than were presented at the previous meeting. Overall, the front fa~ade widths have been reduced from 127 feet to 120 feet. The revised conceptual massing design has also reduced the possible ridge height of the structures from 33 feet to 27 feet, which also contributes to less front fa~ade area. In total, the overall reduction in surface area of the front facades would be approximately twenty-four (24) percent. The Applicant has also committed to limiting the ridge height on twenty (20) percent of the width of the front fa~ade to twenty-two (22) feet. Staff feels that the Applicant has made strides towards reducing the overall mass, but feels that the Applicant should also be required to meet the secondary mass residential design standard on the north-facing facades of each of the single-family residences to further ensure that the massing of the structures are minimized as much as is practical. Staff has proposed conditions of approval in the ordinance that would require that the specific residence designs that are to be submitted for 8040 Greenline Review be no more than 120 feet wide on the front fa~ade and that the ridge heights not be more than the twenty-seven (27) feet above finished grade. Additionally, Staff has included a condition of approval that requires the specific residence designs to limit the ridge height of the single-family residences to twenty-two (22) feet on twenty (20) pereent of the north-facing fa~ade widths. Staff believes that these design controls wiJI help reduce the overall apparent massing of the structures from Ute Avenue as was the main purpose of Staffs previous recommendation to reduce the allowable floor area of the structures to 3,800 square feet each. RECOMMENDATION: Staff believes that the conservation easement and the detached, "for sale" Category 4 affordable housing unit provide a considerable amount of community benefit. Additionally, Staff feels that the revised massing controls and the requirement to meet secondary mass on the front fa~ade of the free-market residential units that were described above could serve to limit the visibility of the residences from Ute Avenue at a comparable level to requiring the reduction to 3,800 square feet of floor area as was Staffs original recommendation. Staff recommends that City Council approve the proposed ordinance that includes the design controls to limit the apparent massing of the free-market residential dwelling units from Ute Avenue. PLANNING AND ZONING COMMISSION RECOMMENDATION: The Planning and Zoning Commission recommended that City Council approve the proposed Subdivision, Consolidated Conceptual/Final PUD requests. The Planning and Zoning Commission's resolution was attached as Exhibit "G" in the I 51 Reading Packet and the minutes from their review were attached in the original second reading packet as Exhibit "I". 4 I CITY MANAGER'S COMMENTS: RECOMMENDED MOTION (ALL MOTIONS ARE MADE IN THE AFFIRMATIVE): "I move to approve Ordinance No. 24, Series of 2006, approving with conditions, the 1001 Subdivision, Consolidated PUD, and Growth Management Review for the Preservation of Significant Open Space Parcels to divide the property at 1001 Ute Avenue into two (2) residential parcels for single-family residential development, a parcel for the development of a "for sale" Category 4 affordable housing unit, and three (3) separate common areas." ATTACHMENTS: Exhibit "A"- Revised Massing Chart and App. Addendum 5 ....--1..--- ORDINANCE NO. 24 (SERIES OF 2006) AN ORDINANCE OF THE ASPEN CITY COUNCIL APPROVING WITH CONDITIONS, A SUBDIVISION REVIEW, CONSOLIDATED CONCEPTUAL/FINAL PUD, AND A GROWTH MANAGEMENT REVIEW FOR THE PRESERVATION OF SIGNIFICANT OPEN SPACE PARCELS FOR THE 1001 UTE A VENUE SUBDIVSlON, CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO ParcellD: 2737-182-00-063 WHEREAS, the Community Development Department received an application from Leathem Steam, owner, represented by Davis Horn Incorporated, requesting approval of Subdivision, Consolidated Conceptual/Final Planned Unit Development, 8040 Greenline Review, Growth Management Review for the Preservation of Significant Open Space Parcels to divide the parcel at 100 I Ute Avenue into two (2) residential properties and four (4) separate common areas, City and Townsite of Aspen; and, WHEREAS, the pursuant to Land Use Code Section 26.470.040(B)(I), Detached Single-family and Duplex Dwelling Units, the Community Development Director approved a Growth Management Review for the construction of one single-family dwelling unit, conditioned upon approval of the other associated land use actions requested; and, WHEREAS, pursuant to Land Use Code Section 26.445.030(B)(2), Consolidated Conceptual and Final Review, the Community Development Director consented to allow for the development application to be reviewed as a consolidated PUD review because of the anticipated limited scope of issues involved with the review; and, WHEREAS, pursuant to the applicable sections of the land use code, the Community Development Director has reviewed the requested land use actions and recommended denial of the growth management review for the preservation of significant open space parcels and that a maximum floor area of only 3,830 square feet be allowed per residential lot; and, WHEREAS, during a duly noticed public hearing on April 4, 2006, the Planning and Zoning Commission opened and continued the public hearing on this application to April 18, 2006; and, WHEREAS, during a continued public hearing on April 18, 2006, the Planning and Zoning Commission opened and continued the public hearing on this application to May 2, 2006; and, WHEREAS, the Applicant amended the development application to include the development of a Category 4 affordable housing unit to mitigate for the second free-market residential unit in the subdivision; and, WHEREAS, during a continued public hearing on May 2, 2006, the Planning and Zoning Commission approved Resolution No. 16, Series of 2006, by a six to zero (6-0) vote, approving with conditions an 8040 Greenline Review, a Growth Management Review _l...__~~_ for the Development of Affordable Housing, and recommending that City Council approve with conditions, Subdivision Review, Consolidated Conceptual/Final PUD, and a Growth Management Review for the Preservation of Significant Open Space Parcels for the 1001 Ute Avenue Subdivision to divide the parcel at 1001 Ute Avenue into two (2) residential properties, a parcel for the development of a Category 4 AH unit and four (4) separate common areas, City and Townsite of Aspen; and, WHEREAS, the Aspen City Council has reviewed and considered the development proposal under the applicable provisions of the Municipal Code as identified herein, has reviewed and considered the recommendation of the Planning and Zoning Commission, the Community Development Director, the applicable referral agencies, and has taken and considered public comment at a public hearing; and, WHEREAS, during a duly noticed public hearing on July 10, 2006, the Aspen City Council reviewed the proposal and continued the hearing until July 24, 2006; and, WHEREAS, during a continued public hearing on July 24, 2006, the Aspen City Council reviewed the proposal and continued the hearing until August 14,2006; and, WHEREAS, during a continued public hearing on August 14,2006, the Aspen City Council reviewed the proposed 1001 Ute Avenue Subdivision and approved Ordinance No. 24, Series of 2006, by a to L---.J vote, approving with conditions, the 1001 Ute Avenue Subdivision, Consolidated Conceptual/Final PUD, and Growth Management Review for the Preservation of Significant Open Space Parcels; and, WHEREAS, the City Council finds that the development proposal meets or exceeds all applicable development standards and that the approval of the development proposal, with conditions, is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section 1: Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the Aspen City Council hereby approves with conditions, a Subdivision Review, Consolidated Conceptual/Final PUD, and a Growth Management Review for the Preservation of Significant Open Space Parcels for the 1001 Ute Avenue Subdivision to divide the parcel at 1001 Ute Avenue into two (2) single-family residential properties, a property for the development of a "for sale", three-bedroom, Category 4 affordable housing unit and four (4) separate common areas, subject to the conditions contained herein. Section 2: Approved Development Development of two (2) free-market single-family residential dwelling units, and the development of a "for sale", three-bedroom, Category 4 affordable housing unit, the relocation of the existing tennis courts approximately thirty (30) feet to the west of their current location, along with the necessary road improvements to access the residential lots are hereby approved subject to the terms of this ordinance. Section 3: Dimensional Reauirements The approved dimensional requirements are as follows: Dimensional Approved Requirement Dimensional Reauirements Minimum Lot Size Lot 1- 24,850 SF Lot 2~ 30,060 SF Common Area I Open Space~ 20,860 SF Common Area 2 Open Space~ 24,860 SF Common Area 3 Access Easement=' 15,290 SF Common Area 4 Open Space~ 920 SF Minimum Lot Width 25 Feet for Conunon Area 2 Open Space Minimum Lot Area 31,655 SF in PUD Per Dwelling Unit Minimum Front Per Building Envelope Yard Setback Minimum Side Yard Per Building Envelope Setback Minimum Rear Yard Per Building Envelope Setback Maximum Height 25 Feet as measured from finished grade and 27 Feet to the ridge Allowable External 5,040 SF per each of the FAR two (2) single-family residential dwelling units as calculated based on the City land use code methodology III affect at the time of building permit submittal. Additionally, 1,400 SF is allocated for the development of a "for sale", Category 4 affordable housing unit. Minimum Off-Street 2 Spaces per Residential Parking Unit __ .__.....__1_. Section 4: Subdivision/PUD Plat and Al!reement The Applicant shall record a subdivision/PUD plat and agreement that meets the requirements of Land Use Code within 180 days of approval. The Plat shall contain the property boundaries, easements, and the building envelopes. Section 5: 8040 Greenline Review The 8040 Greenline approval granted herein is only for the road serving the single-family residence parcels and the relocation of the tennis courts. Prior to applying for building permits on the two (2) free-market residential units or the associated accessory dwelling units within the subdivision/PUD, an 8040 Greenline Review on the specific residence designs shall be applied for and approved pursuant to Land Use Code Section 26.435.030, 8040 Greenline Review. Section 6: Residential Desil!I1 Standards The two (2) single-family residences to be constructed within the subdivision shall be required to meet the applicable City of Aspen Residential Design Standards pursuant to Land Use Code Section 26.410, Residential Design Standards. Section 7: Affordable Housinl! Mitil!ation A "for sale", three-bedroom, Category 4 affordable housing unit consisting of a minimum of 1,400 square feet of net livable space shall be constructed in combination with providing a conservation easement on the southern 4.1 acres of the fathering parcel to mitigate for the !Tee-market residential dwelling units to be constructed within the subdivision. The affordable housing unit shall be excluded from the homeowner's association for the subdivision so that it will not be responsible for maintenance and association fees common to the subdivision. Section 8: Conservation Easement 'The Applicant shall deed the 4.1 acres of the fathering parcel to be placed under a conservation easement to the City of Aspen. Subsequently, the City of Aspen shall record a conservation easement to be held by a third party on the 4.1 acres of the fathering parcel to remain in Pitkin County, that will be sterilized in perpetuity against future development in exchange for one of the two (2) single-family development rights within the subdivision. The property shall be deeded to the City prior to submission for an access/infrastructure permit on the common driveway improvements within the subdivision/PUD. The conservation easement document shall be prepared by the Applicant and reviewed by the Pitkin County Community Development Department prior to recordation. Section 9: School Lands Dedication Fee Pursuant to Land Use Code Section 26.630, School Lands Dedication, the Applicant shall pay a fee-in-lieu of land dedication in conjunction with any residential development in the subdivision. Prior to building permit issuance on any residential development within the subdivision, the Applicant shall pay the school lands dedication fee associated with the subdivision as calculated by the City Zoning Officer using the dedication schedule in effect at the time of building permit submission as set forth in Land Use Code Section 26.630.030, School Lands Dedication: Dedication Schedule. Section 10: Park Development Impact Fee Pursuant to Land Use Code Section 26.610, Park Development Impact Fee, the Applicant shall pay a park development impact fee at the time of building permit issuance for any construction within the subdivision that adds new residential/lodge bedrooms and/or commercial/office square footage. The City Zoning Officer shall calculate the amount due using the fee schedule in effect at the time of building permit submission as set forth in Land Use Code Section 26.610.030, Park Development Impact Fee: Fee Schedule. Section 11: Soil Subsidence. Rock Fall. and Avalanche Hazards The Applicant shall submit geotechnical and soil stability reports performed by a qualified, licensed engineer, demonstrating the land is suitable to handle the proposed development in conjunction with the 8040 Greenline Review applications for the individual residences proposed within the subdivision/PUD. The designs for the single-family residences within the subdivision/PUD shall comply with the recommendations of the Applicant's Avalanche Specialist, Peter Lev, and Applicant's Geologist, Nicholas Lampiris, by providing an engineered four (4) foot tall retaining wall on the south side of the residences. Section 12: Mine Waste The Applicant shall provide a mine waste testing and handling plan to the City prior to submitting a building permit application on either of the residences, that complies with the following conditions of approval regarding development in an Environmentally Sensitive area and handling of any hazardous or toxic soils encountered on the property pursuant to Land Use Code Section 26.435.030 of the City of Aspen Municipal Code: a. Any disturbed soil or material that is to be stored above ground shall be securely contained on and covered with a non-permeable tarp or other protective barrier approved by the Environmental Health Department so as to prevent leaching of contaminated material onto or into the surface soil. Disturbed soil or material need not be removed if the City's Environmental Health Department finds that: I) the excavated material contains less than 1,000 parts per million (ppm) of total lead, or 2) that there exists a satisfactory method of disposal at the excavation site. Disturbed soil and solid waste may be disposed of outside of the site upon acceptance of the material at a duly licensed and authorized receiving facility. b. Non-removal of contaminated material. No contaminated soil or solid waste shall be removed, placed, stored, transported or disposed of outside the boundaries of the site without having first obtained any and all necessary State and/or Federal transportation and disposal permits. c. Dust suppression. All activity or development shall be accompanied by dust suppression measures such as the application of water or other soil surfactant to minimize the creation and release of dust and other particulates into the air. d. Vegetable and flower gardening and cultivation. No vegetables or flowers shall be planted or cultivated within the boundaries of the site except in garden beds .._____..----1 consisting of not less than twelve (12) inches of soil containing no more than 999- ppm lead. e. Landscaping. The planting of trees and shrubs and the creation or installation of landscaping features requiring the dislocation or disturbance of more than one cubic yard of soil shall require the same measures outlined in sub-sections a, b, c, f and g. f. Any contaminated soil or mine waste rock that is either disturbed or exposed shall be contained on the property such that runoff does not exit the property or contaminate clean soils existing elsewhere on the property. g. Any contaminated soil or mine waste rock to be left on-site shall be placed under structures or pavement. Soils used in landscaped areas or engineered fills shall be covered by a minimum of I foot of clean soil that contains less than 1,000 ppm lead. Section 13: Fire Mitil!ation Fire sprinkler and alarm systems that meet the requirements of the Fire Marshal shall be installed in each of the single-family residences to be constructed within the subdivision/PUD. The water service line shall be sized appropriately to accommodate the required Fire Sprinkler System. The residences to be designed and constructed within the subdivision/PUD shall meet the Colorado Defensible Space Standards. Compliance with the Colorado Defensible Space Standards shall be verified as part of the 8040 Greenline Review process on the individual residences. Section 14: Drivewav Construction The driveway shall be constructed to the grades that are proposed in the application and shall not exceed twelve (12) percent at any point. A hammerhead fire truck turnaround meeting the requirements of the Fire Marshal shall be installed as proposed in the application. The Applicant shall enter into a recorded road maintenance agreement with the City that is to be reviewed and accepted by the City Fire Marshal prior to the issuance of an access/infrastructure permit to construct the road. An access/infrastructure permit ,hall be applied for and approved by the City Community Development Department prior to commencing any grading or construction activities related to the installation of the common driveway to the residential parcels. A geotechnical report shall be submitted as part of the access/infrastructure permit application. Section 15: Landscapinl! The Applicant shall install landscaping that is consistent with the landscaping plan that is proposed in the application for screening of the retaining wall. A tree removal permit and tree protection plan shall be submitted and approved by the City of Aspen Parks Department prior to commencing construction activities related to the subdivision access improvements. Additionally, individual landscaping plans for the residential parcels shall be submitted and reviewed by the City Parks Department as part of the 8040 Greenline Review applications for the individual residences. The Applicant shall provide a financial security to ensure the completion of the landscaping as shown on the landscaping plan in . d__. J the application is completed prior to a building permit application being submitted on any of the residential units within the subdivision. Section 16: Relocation of Tennis Courts The Applicant shall relocate the existing tennis courts prior to or in conjunction with the installation of the common driveway to the residential parcels within the subdivision/PUD. An access/infrastructure permit shall be applied for and approved prior to the commencement of construction activities related to relocating the tennis courts. The pathway from Ute Avenue to the relocated tennis courts shall be improved to comply with applicable ADA accessibility requirements. A deed restriction shall be recorded on the Common Area 2 Open Space (parcel to contain the tennis courts) that preserves the parcel against future development. Section 17: Trail Easement The Applicant shall grant a public trail easement to accommodate the existing Ajax Trail if It is found to be located outside of the existing trail easement in areas. Additionally, the Applicant shall grant a permanent public trail easement meeting the approval of the City of Aspen Parks Department along the eastern corner of single-family residential Lot I in order to accommodate a pedestrian trail from the Ajax Trail down to Ajax Park prior to recordation of the final subdivision/PUD plat. Section 18: Water Department Requirements The Applicants shall comply with the City of Aspen Water System Standards, with Title 25, and with the applicable standards of Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. The Applicants shall also enter into a water service agreement with the City and complete a common service line agreement for the residential units. Section 19: Aspen Consolidated Sanitation District Requirements The Applicants shall comply with the Aspen Consolidated Sanitation District's rules and regulations. No clear water connections (roof, foundation, perimeter drains) to ACSD lines shall be allowed. The sanitary sewer lines serving the residential properties within the subdivision shall be constructed out of a yellowmite material since adequate separation between the water and sewer lines cannot be maintained under the common driveway. If a glycol heating and snowmelt system is to be installed, the glycol storage areas shall be reviewed and approved by the Aspen Consolidated Sanitation District prior to installation. Section 20: Massing Controls The specific designs of the two (2) free-market residential dwelling units that are to be submitted for 8040 Greenline Review pursuant to Section 5 of this ordinance shall be substantially consistent with the revised massing drawings presented to City Council on August 14, 2006. A substantial subdivision/PUD amendment review would be necessary to substantially vary from the massing drawings presented to City Council on August 14, 2006. The width of the north-facing facades of the free-market residential units shall be limited to 120 feet. The overall ridge height of the free-market, single-family residential structures shall be limited to twenty-seven (27) feet above finished grade, and twenty (20) , percent of the width of the front fayades shall be limited to a ridge height of twenty-two (22) feet above finished grade. Non-reflective materials shall be used in the construction of the proposed single-family residences. Section 21 : Vested Ri2hts The development approvals granted herein shall be vested for a period of three (3) years from the date of issuance of a development order. No later than fourteen (14) days following final approval of all requisite reviews necessary to obtain a development order as set forth in this ordinance, the City Clerk shall cause to be published in a newspaper of general circulation within the jurisdictional boundaries of the City of Aspen, a notice advising the general public of the approval of a site specific development plan and creation of a vested property right pursuant to this Title. Such notice shall be substantially in the following form: Notice is hereby given to the general public of the approval of a vested property right, pursuant to the Land Use Code of the City of Aspen and Title 24, Article 68, Colorado Revised Statutes, pertaining to the following described property: 1001 Ute Avenue, City and Townsite of Aspen, by Ordinance No. 24, Series of 2006, of the Aspen City Council. Section 22: This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 23: If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 24: A public hearing on the ordinance shall be held on the 10th day of July, 2006, in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen (15) days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 12th day of June, 2006. Helen Kalin Klanderud, Mayor ._._,_..__------1 Attest: Kathryn S. Koch, City Clerk FINALLY, adopted, passed and approved this 14th day of August, 2006. Helen Kalin K1anderud, Mayor Attest: Kathryn S. Koch, City Clerk Approved as to form: John P. Worcester, City Attorney u ._._-< J;Xhlt<J,l \~f/ Mcmorandum TO: Jamcs Lindt FROM: Glcnn Horn RE: 1001 Ute Avenue Massing Proposal DATE: August 8, 2006 Thank you for meeting with me yesterday to discuss 100 I Ute Avenue PUD. This revised memorandum summarizes proposed revisions to the 1001 Ute Avenue PUD plan which are based upon our meeting with you and Chris Bendon on August 4, 2006. As you suggested, we have prepared a massing study which portrays the above grade surface area of structures which could potentially be developed on the subject site. The massing study focuses on the proposed east lot because the building on the east lot will be more parallel to Ute Avenue than a building on the west lot which is more perpendicular to Ute Avenue. Given the mature vegetation in the area and setbacks of the building from Ute Avenue, the east lot will have very limited visibility from Ute Avenue from the east and west. The primary view of the east lot will be from due north of the proposed building. Even this view will be substantially screened by the proposed affordable housing unit located on Ute Avenue. Attachment I, 1001 Ute Avenue Project: Massing Proposal, presents massing studies which illustrate that house design and rather than floor area may be the most effective tool to address 100 I Ute Avenue site development issues. Refer to Attachment I, 1001 Ute Avenue Project: Massing Proposal, which illustrates the following. I. Original Proposal: Two Residences + two Garages (375 sf each) 5,040 sf of floor area/unit with 375 sf of exempt garage space/unit 4,191 sf of visible surface area above grade Dimensions of approximately 127' x 33' above grade 2. Planning Department Floor Area Proposal: Two Residences + two Garages (375 sf each). Theoretically, most massive design 3,800 sf of floor area/unit with 375 sf of exempt garage space/unit 5,709 sf of visible surface area above grade Dimensions of approximately 173' x 33' above grade 3. One Single Family Dwclling Unit which may be Developed by Right without the need for Subdivision Approval + one Garage (375 sf). Theoretically, most massive design. 6,870, of ,!oor arca with 375 sf of cxcmpt garage spacc 9,956 si' or visiblc surfacc arca above grade Dimcnsions of approximately 302' x 33' 4. Applicants Reviscd Proposal: Two Rcsidcnccs and two Garages (375 sf each). Least massive design. 5,040 sf of floor area/unit with 375 sf of exempt garage space/unit 3,186 sf of visible surface area above grade Dimensions of approximately 118' x 27' above grade 5. Applicants Proposal: Two residences and two Garages (375 sf each). Theoretically, most massive design. 5,040 sf of floor area/unit with 375 sf of exempt garage space/unit 7,458 sf of visible surface area above grade Dimensions of approximately 226' x 33' above grade Attachment 2, 1001 Ute Avenue, Floor Plan, depicts the floor plan of the house. The floor plan shows the bulk of the house will be reduced by stepping back sections of the house to the south. The applicants revised proposal will adhere to the following massing and design guidelines: L Total free market floor area in the PUD is limited to 10,080 sf with 750 square of exempt garage space. 2. The houses will be limited to one-story above grade and a total of two exposed stories. 3. The revised house designs will have a minimum of a 20 percent reduction in visible surface area above grade as compared to the original proposal as illustrated in the Attachment I. 4. The revised house designs will reduce the width of the portion of the houses above grade by a minimum of 10 feet or approximately 8 percent as illustrated in Attachment L The maximum width of the houses as viewed from Ute Avenue will be 120 feet. 5. The revised house designs will reduce the height of the houses by a minimum of six feet as compared to the original proposal as illustrated in Attachment I (33 feet to 27 feet to the top of the ridge). 6. Each house shall have a minimum of three gables to break up the roofline. 7. At least 20 percent of the lineal width of the roof line will be a minimum of five - 1- fcct bclow thc maximum hcight of thc roof:' ne on the rcmaindcr of the housc. 8. Building matcrials will bc limitcd to organic matcrials without any pcrmancntly rcflcctivc matcrials. 8. Total free markct floor area in thc PUD will be limited to 10,080 sf and 750 excmpt space for garagcs. The floor final floor area distribution between Lots I and 2 will be determined during the 8,040 review. One free market structure may include 15 percent more floor area than the other provided that the total permitted free market floor area is not exceeded. i I , : ! i/;~ <:l ...... I'l. '- \t\, , , , . i - ... .... ~ '~ ) .~ .~. f' ~ '~ ~ ' ~ I I.! 1.' :0 i 01 b' ~ " ~.. ~., 'I . i' !lI . .1 ~ ill ~ I ~ . .~'; t I~, . 11.\ I lI, ~ tJ,! ~ 3 ~ ~ I ~ I 'to, .. t ~ ...~,' - , J ~:! . '~ I , I" ~ \J' . ~ " 'I ~"I "l~ 't '~I " . it. J .... . 00). Q .1'(\ l-. :t ~ \l ~. \l .., '~ '\ ~. ;,' '~' ':1t , ~~,j.. ,i ,I, ~'i I : : M,. ' . li~ ; , !4.{ I'. '1'1. " , , ", , " i-t' , il,! ~ . fiil ' I t), 1"1. . \ ~ ~I': '1. ~ , '. " , '~" J h~ JIliLl ~ ~ N~ + ~,ISli',. . .~ '_c.' .... ...... ',~ .... ... . '\.\:.' -'.,.. ~l-~; ", :'1 !' ." . 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Allgaier, Deputy Directo~ Chris Bendon, Community Development Director C\AWJ Boomerang Lodge Redevelopment - 500 West Hopkins Avenue 2nd Reading of Ordinance No. 26, Series of 2006, Planned Unit Development, Rezoning for PUD Overlay, Subdivision, Condominiumizaton and Vested Rights TO: FROM: THRU: DATE: August 14,2006 REQUEST SUMMARY: The applicant is seeking approval to redevelop the Boomerang Lodge. The existing Boomerang consists of: . 34 hotel units and a total Floor Area of approximately 23,000 square feet. . 31 parking spaces, all but one of which are partially within the city right-of-way The proposed Boomerang Lodge includes: . 53 hotel units and a total Floor Area of approximately 49,170 square feet. . 6 free-market residential units. . 2 affordable housing units. . 48 parking spaces - 31 underground and 17 surface (partiallv in r-o-w). ApPLICANT: Aspen FSP-ABR, LLC. Represented by Sunny Vann, AICP. STAFF RECOMMENDATION: Staff supports the project with conditions. P&Z RECOMMENDATION: The Commission recommended that the City Council approve of the lodge redevelopment proposal by a vote of four to two (4-2). The two dissenting votes supported the redevelopment concept in terms of bringing new lodge rooms and keeping the "old" Boomerang Lodge component in the site plan. Their issue had to do with the height along Hopkins Ave. and neighborhood compatibility. Since the time of the P&Z hearing the applicants have reduced the height by at least 3 feet and have removed some of the areas that had been 4 floors in height to 3 floors. ***PLEASE NOTE THAT NEW INFORMATION IN RESPONSE TO THE COUNCIL COMMENTS/QUESTIONS IS INCLUDED UNDER "STAFF COMMENTS" AND SEVERAL NEW EXHIBITS ARE ATTACHED, INCLUDING A SUMMARY OF CHANGES (EXHIBIT F) FROM THE APPLICANT SINCE THE 7/10 HEARNG.*** BOOMERANG LODGE REDEVELOPMENT STAFF REPORT PAGE 1 ..J SUMMARY: The applicant, Aspen FSP-ABR, LLC. Represented by Sunny Vann, AlCP, is proposing to redevelop the Boomerang Lodge. The hotel is zoned R-6 LP - Medium-Density Residential with a Lodge Preservation Overlay. The property is a half-block - 27,000 square feet - and is located at 500 West Hopkins. The property is legally known as Lots K through S of Block 31. The R-6 Zone District is a single-family and duplex zone district. (The "west-end" is zoned R-6.) The Lodge Preservation Overlay permits lodging and effectively "legalizes" the lodge use. Many of the city's older lodges are within residential neighborhoods and are permitted through a LP overlay. The LP overlay also enables a PUD review to allow JDr the expansion of lodging in a manner appropriate for the neighborhood in which the lodge exists. The proposed development now consists of 53 hotel units (53 keys total), 6 free-market residential units, 2 affordable housing units, 31 underground parking spaces, and 12 surface parking spaces to remain partially within the street rights-of-way. The total FAR of the site would increase from roughly 23,000 square feet to approximately 49,170 square feet. DIMENSIONAL REQUIREMENTS AND APPROVALS: Dimension R-6 District Existing Development Requirement Development Set in PUD Minimum Lot Size 6,000 sJ. 27,000 sJ. 27,000 s.f. Minimum Lot 60 ft 270 ft. 270 ft. Width Minimum Front 5 ft. 10-70 ft. (varies) 5' 2" Yard Setback (Hopkins) Minimum Side 5 ft. 6 ft. on west 5 ft. on west Yard Setback 1-5 ft. on east 5 ft. on east Minimum Rear 5 ft. 0-2 ft. 5 ft. on north Yard Setback (second floor balcony overhang 4' 5") Maximum Height 25 ft. pitched roofs 30 ft. on alley 39 ft. for a flat roof, (set in PUD for 20-25 ft on east roof heights vary Lodging) according to PUD plan Parking Set in PUD 31 surface (all but 1 31 underground and partially in r.o.w) 12 @ surface (partially in r.o.w.) BOOMERANG LODGE REDEVELOPMENT STAFF REPORT PAGE 2 ..J Floor Area Ratio/Size: Total Set in PUD .85 = 23,000 s.f. 1.82:1 = 49,170 s.f. Lodging Set in PUD .85 = 23,000 s.t. .97:1 = 26,199 s.f. Ave. Lodge Size Set in PUD-500 sq. 340 s.f. 494s.t. ft.desirable Free-Market 25% ot total project N/A .45: 1 = 12,289 = Residential Floor Area 25% of total project Affordable No FAR limit N/A .05:1 = 1,384s.f. Residential NECESSARY LAND USE ApPROVALS: The following land use approvals are requested and necessary for approval of this project: I. GROWTII MANAGEMENT OUOTA SYSTEM -INCENTIVE LODGE DEVELOPMENT: This review acommodates new lodge allotments (there are 18 requested in this application) and associated new free-market residential allotments (6 are requested). Final Review Authority: Planning and Zoning Commission. NOTE: The replacement of existing lodge development is exempt from the City's Growth Management System. No review is required. APPROVED by P&Z 2. GROWTII MANAGEMENT OUOTA SYSTEM - AFFORDABLE HOUSING: This review addresses the development of affordable housing units of which 2 units are proposed. Final Review Authority: Planning and Zoning Commission. APPROVED by P&Z 3. PLANNED UNIT DEVELOPMENT: This review is required for lodge development in the LP overlay to determine the appropriate dimensions of a project. Final Review Authority: City Council after a recommendation from P&z. 4. REZONING FOR PUD OVERLAY: This review is required to affect a change in the zoning map to indicate a Planned Unit Development Overlay. Final Review Authority: City Council after a recommendation from P&z. 5. SUBDIVISION; Subdivision review is required for the 8 residential units being created. There are no lot lines being altered through his application. Final Review Authority: City Council after a recommendation from P&z. 6. CONDOMINIUMIZATION; Condominiumization approval is required in order to sell separate interests in the lodge and commercial units. The applicant is requesting condominiumization approval for the project concurrent with this application. The Code requires a condo plat to be submitted for review by the Community Development Director as a subdivision, however, a plat cannot be prepared until construction is substantially complete. Including the condo request now will BOOMERANG LODGE REDEVELOPMENT STAFF REPORT PAGE 3 permit the condo plat to be approved administratively after construction. Final Review Authority: City Council 7. VESTED RIGHTS: Project approvals are "vested" automatically for a 3-year period upon final approval. After this time period, a projects approvals remain valid, but are subject to changes in the Land Use Code. The applicant has requested the standard 3-year vested right. Final Review Authority: City Council. STAFF COMMENTS: THIS SECTION HIGHLIGHTS THE SPECIFIC ISSUES THAT WERE RAISED BY THE CITY COUNCIL AT THE HEARING ON JULY 10TH THAT REQUIRED FOLLOW-UP BY EITHER STAFF OR THE APPLICANT Height. The neighborhood is a mix of single-family, duplex, multi-family, lodging, and mixed-use buildings. There is an affordable housing project (Little Ajax) under construction across the street (Hopkins) and a pending redevelopment of the Jewish Community Center (the L' Augberge cabins). The existing development is a mix of two and three story elements with a majority of the project massing located along the alleyway. Structure heights in the neighborhood range from 20 feet to the low 30s. The most-recent approvals have been in the low 30-foot range. The Christiania Lodge was approved at 32 feet, measured at a midpoint (ridge heights are well above 32 feet). Staff understands the need for redeveloped lodging facilities and this proposal represents a significant gain in the type of lodge development desired by the City - small units and the regeneration of a small lodge. This goal does need to be balanced with the general character of the neighborhood. The Council should discuss this balance and how it should be struck for this site. While the application was in proceedings with the P&Z and at their urging, the applicants amended the plan by removing 2 lodge units and reducing the height of the building in the northwest comer from 42 feet to 39 feet. Now, no portion of the building exceeds 39 feet and even then, only 20% of the building is at this height at three "bump-ups" of the elevations. These highest areas are located on the Hopkins Street side of the development where numerous trees help to diminish the impact of the height on the neighborhood. Use as Condominiumized Lodge Units. The development is proposed as ownership condominiums that function as lodge (hotel) units. As such, they will be subject to the city's occupancy provisions that do not allow any person or entity with an ownership interest in the hotel, or unit thereof, to exceed occupancy for 30 consecutive days or exceed 90 days within any calendar year. The city created this definition so that when lodges are built and sold as condominiums (can't regulate ownership) there is a definition of how the lodge can used in order to get the city closer to its goal of lodge room availability and moving away from condos that are not used much of the year by owners. The proposal's "operational plan" indicates that the units will be available for rental when not occupied by the owner or guests thereof. Please see Exhibit D which is a letter from E. Michael Hoffman, P.C. providing some background information and insight as to how the Colorado Common Interest Ownership Act (CCIOA) applies to this application. Staff BOOMERANG LOOGE REDEVELOPMENT STAFF REPORT PAGE 4 .~ . I . feels that Mr. Hoffman's discussion accurately reflects how the code is intended to be used in the case of whole ownership condominiums for lodge use. Number of Units. The development includes 53 units (ave. size 494 sq. ft.) with a maximum of 53 keys. Some of these units are designed to be combined by a connecting door to allow for a larger space, say for a larger family. Specifically, 32 of the units can be combined to create 16 larger units for an average size of around 998 sq. ft. Typically the city has evaluated impacts and parking generation based on the number of keys so that the "worst case scenario" for these types of impacts can be evaluation and/or planned for with proper amenities. Setbacks. All of the proposed new development on the site meets with setback requirements. There are two minor spots on the site that vary only slightly from the minimum setback and these are associated with keeping the base floor of the "old" east wing in tact. One is at the northeast corner of the foundation at the east wing where the existing sub grade foundation encroaches by 16 inches into the setback and the other area is on the second floor above the east wing which encroaches by 7 inches so that the external circulation corridor can wrap around the building in keeping with the existing building. Lodge Unit Density. In an effort to reduce height and massing (points of concern during the P&Z and council hearings), the applicant has now reduced the number of units to 53 lodge units, instead of the originally proposed 54 lodge units. This puts the average lodge unit size around 494 square feet instead of the 500 square feet and the density at I per 520 square feet of lot size pursuant to the Lodge Incentive program. Provisions of the Lodge Preservation Overlay (LP) district allow for an adjustment to the "density standard" and "average unit-size standard" after consideration is given to the following: . The average unit-size standard may be amended by a maximum of 20% to permit an average units size of 600 square feet. (The proposal meets this standard.) . The project includes a generous amount of non-unit space, amenities, and services for guests of the lodging operation. This can be both internal and external. (The proposal keeps the unique original pool, original meeting/brealifast room upstairs in the old east wing to be named the "Patterson Room ". The project includes a lounge/library, multi-purpose room and concierge area and services.) . The project provides a range of unit sizes and configurations to be attractive to a broad segment of potential guests. Flexible units are encouraged. (Units range in size from 3 70 to 900 square feet, and include multi-room suites for families.) . There exists a system or strategy for the project to maximize short-term occupancies. (The lodge will be traditional in nature providing a walk-in opportunity for traveling guests. The lodge is not fractionalized, and rooms can not be occupied for more than 30 consecutive days.) BOOMERANG LODGE REDEVELOPMENT STAFF REPORT PAGE 5 Staff is satisfied that the redevelopment of the Boomerang Lodge meets both the specific standards and the overall intent of the Lodge Preservation and Incentive goals. "Historic" East Wing. The City's Historic Preservation Officer and Historic Preservation Commission do believe the existing development has some historic merit. The project is not a designated Historic Landmark and there exists no HPC jurisdiction over the site. The east "wing" of the property has the greatest historic qualities and the applicant has agreed, in principal, to maintain the basic structure and qualities ofthis east wing through redevelopment and consider Landmark designation of the east wing after redevelopment is accomplished. The entire property would not be landmarked. (Please see Exhibit # I of the application.) The Applicants voluntarily gave the HPC the opportunity to review the proposed changes to the east wing. (HPC did not review the entire proposal.) Since the last council meeting, a letter from Jeffrey Halferty was submitted outlining the HPC chairperson's summary of the Boomerang/HPC work session. The letter is attached as Exhibit E. The applicants have proposed a third floor to the east wing and have agreed to address the concerns of the HPC regarding differentiation between the 3rd floor and the below "old" floors through architectural material and style techniques. STAFF RECOMMENDA nON: Staff strongly supports the basic concepts of the application. The proposal implements both replacement and an increase in the bed base in an area that has historically included lodging within the mix of land uses. This is important to the long-term viability of the resort aspect of the community. Also, the interspersed lodging experience inside the community is unique and an important part of Aspen's lodging offerings. The design substantially mitigates the project's parking impacts on the neighborhood and improves pedestrian infrastructure of the area. Staff believes the most recent reduction in the height (from four floors to three floors in some portions) helped the proposal achieve consistency with the neighborhood. When viewing the structure from the public ways in the vicinity, staff feels that the project is compatible with the setting, given the way the building is obscured by other buildings and trees. We do not find that major views toward Shadow Mountain are blocked in that the public way views are primarily established through the existing development there today. We also find that the massing of the building offers enough variety, through inflection, change of facade planes/balconies and glazing (use of windows) to mitigate the actual size of the structure. The building today is of similar massing in terms of the length dimension across the lot. Staff has included a condition requiring, as offered by the applicants, that the owner voluntarily designate the east wing as a historic landmark that would then fall under the purview of the HPC for review to ensure appropriate architectural changes. BOOMERANG LODGE REDEVELOPMENT 5T AFF REPORT PAGE 6 --...1 RECOMMENDED MOTION: "I move to approve upon second reading, Ordinance No. 26, Series of 2006, approving with conditions the Subdivision, PUD, Vested Rights, Condominiumization and Rezoning reviews for the Boomerang Lodge Redevelopment." ATTACHMENTS: Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F: Staff Findings on Review Standards Application Letters received by staff since July 10-Nicholas Samios, dated 7/7/06 Letter from E. Michael Hoffman, P.C. dated 8/2/06 Letter from Jeffrey Halferty, dated 7/30/06 Summary of Changes from Reno*Smith, dated 7/31/06 BOOMERANG LODGE REDEVELOPMENT STAFF REPORT PAGE 7 ..I Ordinance No. 26 (SERIES OF 2006) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL GRANTING APPROVAL OF THE SUBDIVISION, PLANNED UNIT DEVELOPMENT, VESTED RIGHTS, CONDOMINIUMIZA TION, AND REZONING FOR A PLANNED UNIT DEVELOPMENT OVERLAY FOR THE REDEVELOPMENT OF THE BOOMERANG LODGE, 500 WEST HOPKINS AVENUE, CITY OF ASPEN, COLORADO. Parcel ID:2735.124.49.002 WHEREAS, the Community Development Department received an application from Aspen FSP-ABR, LLC, (Applicant), c/o Steve Stunda; 11921 Freedom Drive #950; Reston , V A 20190; represented by Sunny Vann ofVann Associates, requesting approval of six (6) free-market residential growth management allotments, two (2) affordable housing growth management allotments, eighteen (18) lodge growth management allotments, Subdivision approval, Rezoning for a Planned Unit Development Overlay, Planned Unit Development approval, Condominiumization approval, and vested rights for the redevelopment of the Boomerang Lodge located at 500 West Hopkins Avenue and known legally as Lots K through S of Block 31, City and Townsite of Aspen, Pitkin County, Colorado; and, WHEREAS, the site currently contains 34 hotel units in a structure of approximately 23,000 square feet of Floor Area and surface parking located primarily within the public rights-of-way. The proposed development includes 53 hotel units, 6 free- market residential units, 2 affordable housing units, a 31-space underground parking facility, and 17 surface parking spaces in a structure of approximately 49,170 square feet of Floor Area as defined by the City of Aspen; and, WHEREAS, the Community Development Department received referral comments from the Aspen Consolidated Sanitation District, City Engineering, Building Department, Fire, Streets, Housing, Environmental Health, Parks and Water Departments as a result of the Development Review Committee meeting; and, WHEREAS, said referral agencies and the Aspen Community Development Department reviewed the application according to the standards of review for each of the requested land use approvals and recommended approval with conditions; and, WHEREAS, pursuant to Section 26.470.040 of the Land Use Code, Growth Management Review approvals may be granted by the Planning and Zoning Commission at a duly noticed public hearing after considering recommendations by the Community Development Director, and relevant referral agencies and such Growth Management approvals were granted by the Commission on June 13,2006; and, WHEREAS, pursuant to Section 26.480 of the Land Use Code, Subdivision Review approval may be granted by the City Council at a duly noticed public hearing after considering recommendations by the Planning and Zoning Commission Community, Development Director, and relevant referral agencies; and, City Council Ordinance No. 26, Series of 2006 -1- ...j WHEREAS, pursuant to Section 26.304 of the Aspen Land Use Code and during a regular meeting on April II, 2006, continued to May 2, 2006, continued to May 16, 2006, and continued to June 13,2006, the Planning and Zoning Commission opened a duly noticed public hearing to consider the project and where the recommendations ofthe Community Development Director and comments from the public were heard and approved the request for six (6) free-market residential growth management allotments, two (2) affordable housing growth management allotments, eighteen (18) lodge growth management allotments, and recommended City Council Subdivision, Rezoning for a Planned Unit Development Overlay, and Planned Unit Development approval by a four to two (4-2) vote, with the findings contained in Exhibit A of the May 16, 2006, staff memorandum and the conditions of approval listed hereinafter. NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF ASPEN CITY COUNCIL AS FOLLOWS: Section 1: Growth Manal!ement Allotments The Planning and Zoning Commission, pursuant to Chapter 26.470 - Growth Management - approved the Boomerang Lodge Redevelopment project six (6) free- market residential allotments and two (2) affordable housing allotments, and eighteen (18) lodge growth management allotments, subject to the requirements listed hereinafter. Seetion 2: Approval for Subdivision. Rezoninl! for PUD Overlay. and PUD Final Development Plan Pursuant to Chapter 26.480, 26.310, and 26.445 - Subdivision, Rezoning, and Planned Unit Development, respectively - the City Council grants Subdivision approval, rezoning for a Planned Unit Development Overlay, and Planned Unit Development Final Development Plan approval to the Boomerang Lodge Redevelopment project, subject to the requirements listed hereinafter. Section 3: Proiect Dimensions The followin a roved dimensions of the ro'ect shall be reflected in the Final PUD Plans: Minimum Lot Size Minimum Lot Width Minimum Front Yard Setback Minimum Side Yard Setback 27,000 s.f. 270 ft. 0-5 ft. 0-5 ft. on west 1-5 ft. on east Minimum Rear Yard Setback 0-5 ft. Maximum Height 42 ft. for a flat roof. Approximately 30- 35 ft. on east side. ""This needs to be more specific Pedestrian Amenity Space 19% City Council Ordinance No. 26, Series of2006 - 2 - Floor Area: Total 1.86:1 = 50,470 s.f. Lodging .97:1 = 26,210 s.f. Non-unit space .35: 1 = 9,536 s.f. Commercial N/A Free-Market Residential .475:1 = 12,845 = 25% of total project Affordable Residential .05: 1 = 1,452 s.f. Section 4: Trash/Recvclinl! Area The applicant shall ensure that the trash storage area has adequate wildlife protection and to make sure recycling containers are present wherever trash compactors or dumpsters are located due to the City's new recycling ordinance requiring haulers to provide recycling in the cost of trash pick-up. Section 5: Affordable Housinl! The applicant shall provide two Category 2 affordable housing units as depicted in the application dated December 30, 2005. These units shall be considered full mitigation for the development proposed in said application. A Certificate of Occupancy for the Boomerang Lodge Redevelopment project shall not be issued until such time as Certificates of Occupancy for the deed restricted affordable housing units, which are required for mitigation, have been issued. The employees to be housed in the deed-restricted units shall meet the qualification criteria contained within the APCHA Guidelines, as may be amended from time to time. The applicant shall structure and record a deed restriction for the affordable housing units such that an undivided III0th of I percent of the property is deed restricted in perpetuity to the Aspen/Pitkin County Housing Authority; or until such time the units become ownership units; or the applicant may propose any other means that the Housing Authority determines acceptable. The affordable housing units shall be deed-restricted as rental units but will allow for the units to become ownership units at such time the owners would request this change and/or at such time the APCHA deems the units out of compliance over a period of more than one year. At such time, the units will be listed for sale with the Housing Office as specified in the deed restriction at the Category 2 maximum sales price. At such time if the units become ownership units, these units will establish an independent homeowners association. Section 6: Additional Trip Generation and PMIO Mitil!ation Plan In order to reduce the impacts of additional trip generation and PMIO generated by the project, the project shall provide either: I) a shuttle service for use by the owners/guests of the residenceslhotel, 2) an electric vehicle for use by owners/gusts of the project, 3) secure and covered bicycle storage, or 4) the hotel and homeowners associations(s) shall City Council Ordinance No. 26, Series of2006 - 3- join the Transportation Options Program. The Subdivision Agreement shall specifY which of these options shall be implemented. A fleet of five (5) bicycles shall be provided for use by the lodging guests. The project shall be subject to any transportation related impact fees adopted prior to application for a building permit and any of the above options shall be credited towards any fee requirement. Section 7: Subdivision Plat and PUD Plans Within 180 days after final approval by City Council and prior to applying for a Building Permit, the applicant shall record a Subdivision Plat and Final PUD Plans. The Subdivision Plat shall comply with current requirements of the City Community Development Engineer and, in addition to the standard requirements, shall include: I. The final property boundaries and disposition of lands. 2. The location of Revocable Encroachments for physical improvements within public rights-of-way, including parking to be designated to the Lodge, with reference to agreements and licenses for such improvements. 3. The location of utility pedestals with access easements for the utility provider. Transformers and pedestals shall be located outside of the public right-of-way unless licensed. 4. The applicant shall provide the final approved Subdivision line data or survey description data describing the revised building, street, and parcel boundaries to the Geographic Information Systems Department prior to applying for a building permit. The final building location data, including any amendments, shall be provided to the GIS Department prior to issuance of a Certificate of Occupancy. In addition to the standard requirement of Section 26.445.070.B, the Final PUD Plans shall include: I. An illustrative site plan with adequate snow storage areas and/or snow melted areas depicted. Approved project dimensions shall be printed on the final illustrative plan. 2. A landscape plan showing location, amount, and species oflandscape improvements with an irrigation plan with a signature line for the City Parks Department. 3. A sidewalk and curb improvements plan depicting a detached sidewalk with planting buffer along both West Hopkins Avenue and North 5th Street. The sidewalk shall be five feet in width and be located adjacent to the property boundaries, or as close as possible given existing vegetation as determined by the City Engineer and the Community Development Director. The surface parking along West Hopkins Avenue shall be eliminated. The sidewalk shall incorporate accessible ramps according to the current standards. 4. Design specifications and profiles for public right-of-way improvements. 5. An architectural character plan demonstrating the general architectural character and depicting materials, fenestration, and projections. 6. Scaled floor plans of each level of the building depicting unit divisions. 7. A utility plan meeting the standards of the City Engineer and City utility agencies. City Council Ordinance No. 26, Series of 2006 - 4 - ........,.. 8. A grading/drainage plan, including an erosion control plan, prepared by a Colorado licensed Civil Engineer, which maintains sediment and debris on-site during and after construction. If a ground recharge system is required, a soil percolation report will be required to correctly size the facility. A 2-year storm frequency should be used in designing any drainage improvements. Off-site improvement shall be done in coordination with the City Engineer. 9. An exterior lighting plan meeting the requirements of Section 26.575.150. Section 8: Subdivision and PUD Ae.reement Within 180 days after final approval by City Council and prior to applying for Building Permit, the applicant shall record a Subdivision and PUD Agreement binding this property to this development approval. The Agreement shall include the necessary items detailed in Section 26.480.070 and 26.445.070.C, in addition to the following: I. Revocable Encroachment agreements and licenses for physical improvements within public rights.of-way with reference to their locations depicted on the Subdivision Plat. 2. In order to secure the performance of the construction and installation of improvements in the public rights-of-way, the landscape plan, and public facilities performance security shall include and secure the estimated costs of proposed right-of-way improvements. 3. A revocable license agreement to use portions of the Fourth Street right-of-way for dedicated parking. 4. A license agreement to use any public rights-of-way, or portions thereof, adjacent to the project site for construction staging including a fee to use the land at a rate of $1.25 per square foot per month for the time period in which the land is to be occupied for construction staging. Section 9: Impact Fees Park Imoact Fees of $44, 354 shall be assessed. Amendments to the Project or to the fee schedule adopted prior to issuance of a building permit shall require a new calculation. The following fee total is based on the current proposal and fee schedule: Park Fees - Fees for Proposed Development: 5 Lodge Units (studio units) @$1,520perunit 2 one-bedroom residential units @ $2,120 per unit 3 two-bedroom residential units @ $2,725 per unit 3 three-bedroom residential units @ $3,634 per unit Total =$80,560 = $4,240 =$8,175 = $10,902 = $103,877 Park Fees - Credit for Existing Development: 34 Lodge Units 29-studio units @ $1,520 per unit 3 two-bedroom units @ $2725 per unit 2 three-bedroom units @ $3,634 per unit =$44,080 =$8,175 =$7,268 Total Credit = ($59,523) Total Park Impact Fee Due = $44,354 City Council Ordinance No. 26, Series of 2006 - 5- I. School Land Dedication Fees are assessed based on one-third the value of the unimproved land divided by the proposed number of residential units on a per acre basis. The applicant shall provide and the City of Aspen shall verifY the unimproved land value of the lands underlying the Project and determine the applicable dedication fee. The subject subdivision is not conducive to locating a school facility and a cash-in-lieu payment shall be accepted. Amendments to the Project or to the fee schedule adopted prior to issuance of a building permit shall require a new calculation. Other Imvacts Fees. The project shall be subject to amendments and additions to the Impact Fee Chapter of the Land Use Code adopted prior to the application for a building permit. Section 10: Water Department The applicant shall comply with the City of Aspen Water System Standards, with Title 25, and with applicable standards of Municipal Code Title 8 (Water Conservation and Plumbing Advisory Code) of the Aspen Municipal Code, as required by the City of Aspen Water Department. Soil nails will not be allowed in the City ROW. Section 11: Sanitation District Standards/Requirements The applicant shall comply with the Aspen Consolidated Sanitation District's rules and regulations, including the following: I. Service is contingent upon compliance with the District's rules, regulations, and specifications, which are on file at the District office at the time of construction. 2. Applicant's engineer will be required to give the district an estimate of anticipated daily average and peak flows from the project. 3. A wastewater flow study may be required for this project to be funded by the applicant. 4. All clear water connections are prohibited (roof, foundation, perimeter, patio drains), including entrances to underground parking garages. 5. On-site drainage and landscaping plans require approval by the district, must accommodate ACSD service requirements and comply with rules, regulations and specifications. 6. On-site sanitary sewer utility plans require approval by ACSD. 7. Oil and Sand separators are required for public vehicle parking garages and vehicle maintenance facilities. 8. Glycol snowmelt and heating systems must have containment provisions and must preclude discharge to the public sanitary sewer system. 9. Plans for interceptors, separators and containment facilities require submittal by the applicant and approval prior to building permit. 10. When new service lines are required for existing development the old service lines must be excavated and abandoned at the main sanitary sewer line according to specific ACSD requirements. II. Below grade development may require installation of a pumping system. City Council Ordinance No. 26, Series of 2006 - 6- ,_.1 12. Generally one tap is allowed for each building. Shared service line agreements may be required where more than one unit is served by a single service line. 13. Permanent improvements are prohibited in areas covered by sewer easements or right of ways to the lot line of each development. 14. All ACSD total connection fees must be paid prior to the issuance of a building permit. 15. Where additional development would produce flows that would exceed the planned reserve capacity of the existing system (collection system and or treatment system) an additional proportionate fee will be assessed to eliminate the downstream collection system or treatment capacity constraint. Additional proportionate fees would be collected over time from all development in the area of concern in order to fund the improvements needed. Section 12: Pre-Construction Meetine Prior to Building Permit Submission, a meeting between the following parties shall be conducted: Developer/Applicant, Project Architect, Prime Contractor, City Staff Planner, Community Development Engineer, City Engineer, Building Official/Plans Examiner. The purpose of the meeting is to identifY the approving ordinance and any amendments, identifY conditions of approval, discuss the Construction Management Plan, identifY the timeline for plat and PUD/SIA agreement recordation, identifY the types of building permits necessary and the development activities that can be conducted prior to receiving a building permit, review any critical timeline issues, review the steps and timing of the building permit process, discuss responsibilities of all parties in. getting permits, changes, etc., and review the Building Department checklist. Section 13: Construction Manaeement Plan Prior to application for any Building Permit, Foundation Permit, Access Infrastructure permit, Demolition permit, etc., the applicant and the City shall agree upon a Construction Management Plan for the project. For the City, the plan shall be reviewed by the Community Development Engineer. The Plan shall include: I. A construction management and parking plan meeting the specifications of the City Building Department. 2. An estimated construction schedule with estimated schedules for construction phases affecting city streets and infrastructure and provisions for noticing emergency service providers, neighbors, the City Streets Department, the Transportation Department, City Parking Department, and the City Engineering Department. Street closures concurrent with significant public events shall be avoided to the greatest extent possible. 3. A notice to be sent to neighboring property owners describing the general schedule of the project and the contact information of the general contractor. The City encourages open communication between project representatives and the neighbors such that day-to-day issues can be resolved without involving the City. City Council Ordinance No. 26, Series of2006 -7 - ,I -----. 4. A Fugitive Dust Control Plan which includes, but is not limited to fencing, watering of haul roads and disturbed areas, daily cleaning of adjacent paved roads to remove mud that has been carried out, speed limits, or other measures necessary to prevent windblown dust from crossing the property line or causing a nuisance. For projects greater than one acre in size a fugitive dust control plan must be submitted to the Colorado Department of Public Health and Environment (CDPHE), Air Quality Control Division. 5. Recycling facilities, in addition to trash facilities, for the period of construction. Section 14: BuildiDl!: Permit Requirements The building permit application shall include/depict: I. A signed copy of the final P &Z Resolution and Council Ordinance granting land use approval. 2. A letter from the primary contractor stating that the approving Resolution and Ordinance have been read and understood. 3. The conditions of approval shall be printed on the cover page of the building permit set. 4. A completed tap permit for service with the Aspen Consolidated Sanitation District. 5. A right-of-way improvement plan depicting physical improvements to the right-of-way including design specifications and profiles. All improvements shall comply with the City's requirements for accessibility. 6. A landscape plan showing location, amount, and species of landscape improvements with an irrigation plan for approval by the City Parks Department. 7 A utility plan meeting the standards of the City Engineer and City utility agencies. 8. A grading/drainage plan, including an erosion control plan, prepared by a Colorado licensed Civil Engineer, which maintains sediment and debris on-site during and after construction. If a ground recharge system is required, a soil percolation report will be required to correctly size the facility. A 2-year storm frequency should be used in designing any drainage improvements. Off-site improvement shall be done in coordination with the City Engineer. 9. A fireplace/woodstove permit. In the City of Aspen, buildings may have only two gas log fireplaces or two certified woodstoves (or I of each) and unlimited numbers of decorative gas fireplace appliances per building. New buildings may NOT have wood burning fireplaces, nor may any heating device use coal as fuel. 10. An asbestos inspection report. Prior to remodel, expansion or demolition of any public or commercial building, including removal of drywall, carpet, tile, etc., the CDPHE Air Quality Control Division must be notified and a person licensed by the state of Colorado to do asbestos inspections must do an inspection. The Building Department cannot sign any building permits until they get this report. If there is no asbestos, the demolition can proceed. If asbestos is present, a licensed asbestos removal contractor must remove it. 11. A tree removal permit, as applicable. City Council Ordinance No. 26, Series of2006 - 8- 12. A fugitive dust control plan approved by the Environmental Health Department which addresses watering of disturbed areas including haul roads, perimeter silt fencing, as- needed cleaning of adjacent rights-of-way, speed limits within and accessing the site, and the ability to request additional measures to prevent a nuisance during construction. The applicant shall wash tracked mud and debris from the street as necessary, and as requested by the City, during construction. Submission of a fugitive dust control plan to the Colorado Department of Public Health and Environment Air Quality Control Division may also be necessary. 13. A study performed by a Colorado licensed Civil Engineer demonstrating how' the required excavation of the site may be performed without damaging adjacent structures and/or streets. The City will not approve of soil nails into public right-of- way or utility easements. 14. A construction site management and parking plan meeting the specifications of the City Building Department. Prior to issuance of a building permit: I. All tap fees, impacts fees, and building permit fees shall be paid. 2. The location and design of standpipes, fire sprinklers, and alarms shall be acceptable to the Fire Marshall. Section 15: Noise Durin!!: Construction During construction, noise cannot exceed maximum permissible sound level standards, and construction cannot be done except between the hours of 7 am and 7 pm, Monday thru Saturday. Construction is not allowed on Sundays. It is very likely that noise generated during the construction phase of this project will have some negative impact on the neighborhood. The applicant should be aware of this and take measures to minimize the predicted high noise levels. Section 16: Condominiumization Condominiumization of the Project to define separate ownership interests of the Project is hereby approved by the City of Aspen, subject to recordation of a condominiumization plat in compliance with the current (at the time of condo plat submission) plat requirements of the City Community Development Engineer. Section 17: Historic Landmark Desi!!:nation of the "East Win!!:" Prior to filing of the final plat the owner shall initiate the designation of the "East Wing" of the Boomerang Lodge for listing on the Aspen Inventory of Historic Sites and Structures. The area to be designated shall be finalized in conjunction with the Historic Preservation Commission but shall include that area of the structural east wing along the alley, Fourth Street and Hopkins Avenue, also including the outdoor pool and spa area. Section 18: All material representations and commitments made by the developer pursuant to the development proposal approvals as herein awarded, whether in public hearing or documentation presented before the Planning and Zoning Commission are hereby City Council Ordinance No. 26, Seriesof2006 - 9- incorporated in such plan development approvals and the same shall be complied with as if fully set forth herein, unless amended by other specific conditions. Section 19: This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 20: If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 21: That the City Clerk is directed, upon the adoption of this Ordinance, to record a copy in the office of the Pitkin County Clerk and Recorder. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 26th day of June, 2006. Helen Kalin Klanderud, Mayor FIN ALL Y, adopted, passed and approved this 14th day of August, 2006. Kathryn S. Koch, City Clerk Helen Kalin Klanderud, Mayor APPROVED AS TO FORM: City Attorney ATTEST: Jackie Lothian, Deputy City Clerk City Council Ordinance No. 26, Series of2006 - 10- ,.1. E~h'k:n'"" A SUBDIVISION: STAFF FINDINGS The Definitions section (26.104.100) of the Land Use Code explains that subdivision approval is required whenever leasehold interests will be transferred. Section 26.480.050 states that a development application for subdivision review shall comply with the following standards and requirements: A. General Requirements. a. The proposed subdivision shall be consistent with the Aspen Area Comprehensive Plan (AACP). STAFF FINDING: I DOES IT COMPLY? I YES The proposed development is consistent with the AACP. The subdivision action is necessary to permit multiple residences on one parcel. There is no alteration of the existing lot lines of the property. Also see staff comments on page 3 of this exhibit. b. The proposed subdivision shall be consistent with the character of existing land uses in the area. STAFF FINDING: DOES IT COMPLY? YES Staff believes that the subdivision is consistent with the character of existing land uses in the area which operate in a similar manner - lodging, residential, and commercial in various mixed-use confi rations. c. The proposed subdivision shall not adversely affect the future development of surrounding areas. STAFF FINDING: DOES IT COMPLY? YES Because the subdivision proposed here is all internal to the structure, staff does not find that the subdivision will adversely impact future development of the surroundin area. All surroundin ro erties have ade uate access. d. The proposed subdivision shall be in compliance with all applicable requirements of this Title. STAFF FINDING: I DOES IT COMPLY? I YES Assuming the project is granted the other related approvals, the proposed subdivision is in compliance with all applicable requirements of the zone district and other chapters and sections of the Land Use Code. B. Suitability of Land for Subdivision. a. Land Suitability. The proposed subdivision shall not be located on land unsuitable for development because of jlooding, drainage, rock or soil creep, mudjlow, rockslide, avalanche or snow slide, steep topography or any other natural hazard or other condition that will be harmful to the health, safety, or welfare of the residents in the proposed subdivision. STAFF FINDING: DOES IT COMPL V? YES Staff finds that the parcel is generally suitable for development considering all of the above dan ers. No known hazards of the ro erty have been re orted. b. Spatial Pattern Efficient. The proposed subdivision shall not be designed to create spatial patterns that cause inefficiencies, duplication or premature extension of public facilities and unnecessary public costs. STAFF FINDING: I DOES IT COMPL v? I YES Staff finds that the proposed subdivision will not create spatial patterns that cause inefficiencies, duplication or premature extension of public facilities or unnecessary public costs. C. Improvements. The improvements set forth at Chapter 26.580 shall be provided for the proposed subdivision. These standards may be varied by special review (See, Chapter 26.430) if the following conditions have been met: 1. A unique situation exists for the development where strict adherence to the subdivision design standards would result in incompatibility with the Aspen Area Comprehensive Plan, the existing, neighboring development areas, and/or the goals of the community. STAFF FINDING: DOES IT COMPLY? YES No variations to the subdivision standards are ro osed. 2. The applicant shall specify each design standard variation requested and provide justification for each variation request, providing design recommendations by professional engineers as necessary. STAFF FINDING: I DOES IT COMPL v? I YES No variations to the subdivision standards are requested. D. Affordable Housing. A subdivision which is comprised of replacement dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.520, Replacement Housing Program. A subdivision which is comprised of new dwelling units shall be required to provide affordable housing in compliance with the requirements of Chapter 26.470, Growth Management Quota System. I STAFF FINDING: I DOES IT COMPLY? I YES 2 .1- The standards of Chapter 26.470 - Growth Management - are applicable and have been addressed in the application. Staff finds the affordable housing requirement to be met with the ro osed two affordable housin units. E. School Land Dedication. Compliance with the School Land Dedication Standards set forth at Chapter 26.630. Applicability. School land dedication standards shall be assessed upon all new subdivisions within the City of Aspen which contain residential units. An applicant may make a cash payment in-lieu of dedicating land to the City, or may make a cash payment in combination with a land dedication, to comply with the standards of this Section. This section of the subdivision regulations requires the dedication of land or the payment of an in-lieu fee for each new residential unit in a subdivision. STAFF FINDING: DOES IT COMPLY? YES Compliance with the School Land Dedication Standards is required for the residential dwelling units proposed. The applicant will pay cash in lieu of a land dedication, which will be re uired at time of building ermit. 3 STAFF FINDINGS: PLANNED UNIT DEVELOPMENT Section 26.445.050, Review Standards: Final PUD Section 26.445.050 of the Regulations provides that development applications for Final PUD must comply with the following standards and requirements. A. General Requirements. I. The proposed development shall be consistent with the Aspen Area Community Plan. Staff Finding Staff believes that the proposal is consistent with many objectives of the Aspen Area Community Plan. Please see staffs response to this standard on page 3 of this section. 2. The proposed development shall be consistent with the character of existing land uses in the surrounding area. Staff Finding The immediate vicinity is comprised of lodging, civic, commercial, mixed use, single- family, and multi-family residential buildings. Staff believes that the proposed use is consistent with the character of existing land uses in the area. 3. The proposed development shall not adversely affect the future development of the surrounding area. Staff Finding Staff does not believe that the proposed development would adversely affect the future development of the surrounding area. Staff finds this criterion to be met. 4. The proposed development has either been granted GMQS allotments, is exempt from GMQS, or GMQS allotments are available to accommodate the proposed development and will be considered prior to, or in combination with, final PUD development plan review. Staff Finding The Applicant has applied for the requisite allotments and there is sufficient allotment available to accommodate the project. B. Establishment of Dimensional Requirements: The final PUD development plans shall establish the dimensional requirements for all properties within the PUD ...The dimensional requirements of the underlying zone district shall be used as a guide in determining the appropriate dimensions for the PUD. During review of the proposed dimensional requirements, compatibility with surrounding land uses and existing development patterns shall be emphasized. 4 "I 1. The proposed dimensional requirements for the subject property are appropriate and compatible with the following influences on the property: a) The character of, and compatibility with, existing and expected future land uses in the surrounding area. b) Natural and man-made hazards. c) Existing natural characteristics of the property and surrounding area such as steep slopes, waterways, shade, and significant vegetation and landforms. d) Existing and proposed man-made characteristics of the property and the surrounding area such as noise, traffic, transit, pedestrian circulation, parking, and historical resources. ;>taffFinding Staff believes that the proposed use is appropriate given the character of the neighborhood and the fact that lodging has operated on this property for the last 50 years. The proposed height has been of some concern to staff however, following an additional site inspection and evaluation based on the neighborhood, existing views, existing buildings, and trees that obscure the building from full view from any vantage point, Staff finds the height to be acceptable. 2. The proposed dimensional requirements permit a scale, massing, and quantity of open space and site coverage appropriate and favorable to the character of the proposed PUD and of the surrounding area. Staff Finding Staff believes that the a majority of the proposed dimensional requirements for the new lodge are compatible with the surrounding properties. 3. The appropriate number of off-street parking spaces shall be established based on the following considerations: a) The probable number of cars used by those using the proposed development including any non-residential land uses. b) The varying time periods of use, whenever joint use of common parking is proposed c) The availability of public transit and other transportation facilities, including those for pedestrian access and/or the commitment to utilize automobile disincentive techniques in the proposed development. d) The proximity of the proposed development to the commercial core and general activity centers in the city. Staff Finding The Applicant has proposed an underground parking garage to handle the parking needs of the project as well as to officially permit the parking spaces along Fourth Street. Staff prefers that the parking along Hopkins Avenue be removed and the sidewalk continued along this street. 5 ~-I "' 4. The maximum allowable density within a PUD may be reduced if there exists insufficient infrastructure capabilities. Specifically, the maximum density of a PUD may be reduced if: a) There is not sufficient water pressure, drainage capabilities, or other utilities to service the proposed development. b) There are not adequate roads to ensure fire protection, snow removal, and road maintenance to the proposed development. ]Staff Finding The infrastructure capabilities are sufficient to accommodate this proposal. 5. The maximum allowable density within a PUD may be reduced if there exists natural hazards or critical natural site features. Specifically, the maximum density of a PUD may be reduced if: a) The land is not suitable for the proposed development because of ground instability or the possibility of mud flow, rock falls or avalanche dangers. b) The effects of the proposed development are detrimental to the natural watershed, due to runoff, drainage, soil erosion, and consequent water pollution. c) The proposed development will have a pernicious effect on air quality in the surrounding area and the City. d) The design and location of any proposed structure, road, driveway, or trail in the proposed development is not compatible with the terrain or causes harmful disturbance to critical natural features of the site. Staff Finding No natural hazards or other conditions exist that would dictate such a reduction In allowable density. 6. The maximum allowable density within a PUD may be increased if there exists a significant community goal to be achieved through such increase and the development pattern is compatible with its surrounding development patterns and with the site's physical constraints. Specifically, the maximum density of a PUD may be increased if: a) The increase in density serves one or more goals of the community as expressed in the Aspen Area Community Plan (AACP) or a specific area plan to which the property is subject. b) The site's physical capabilities can accommodate additional density and there exists no negative physical characteristics of the site, as identified in subparagraphs 4 and 5, above, those areas can be avoided, or those characteristics mitigated. c) The increase in maximum density results in a development pattern compatible with, and complimentary to, the surrounding existing and expected development pattern, land uses, and characteristics. 6 .---.-.--,. I Staff Finding Staff believes the proposed density is appropriate for the site and for the character of the immediate vicinity. There are not "density" requirements of the zone district, but the number of units are established through adoption of a PUD. B. Site Design: The purpose of this standard is to ensure the PUD enhances public spaces, is complimentary to the site's natural and man-made features and the adjacent public spaces, and ensures the public's health and safety. The proposed development shall comply with the following: 1. Existing natural or man-made features of the site which are unique, provide visual interest or a specific reference to the past, or contribute to the identity of the town are preserved or enhanced in an appropriate manner. Staff Finding The pool area is being preserved through the redevelopment. This area provides some relief to the massing and a benefit to the project. Staff considers the criterion to be met. 2. Structures have been clustered to appropriately preserve significant open spaces and vistas. Staff Finding Other than the pool area, there is no significant open space in the proposal. However, this is an infill development site and using the site for lodging development is appropriate. 3. Structures are appropriately oriented to public streets, contribute to the urban or rural context where appropriate, and provide visual interest and engagement of vehicular and pedestrian movement. Staff Finding The east wing is proposed to be preserved. This element has an important relationship to Fourth Street a the primary entrance. The sidewalk along Hopkins and Fifth Street needs improvement. These sidewalks should, ideally, be redeveloped adjacent to the property line. Some conflicts with existing vegetation may arise by doing this. 4. Buildings and access ways are appropriately arranged to allow emergency and service vehicle access. Staff Finding Proper emergency access will be maintained with this proposal. 5. Adequate pedestrian and handicapped access is provided. 7 j - Staff Finding This criterion has been met. Compliance with accessibility regulations will be required and will be reviewed at the time of building permit. The Building Department has requested the project Architect meet with the department as soon as possible in the design development process. 6. Site drainage is accommodated for the proposed development in a practical and reasonable manner and shall not negatively impact surrounding properties. Staff Finding The City Engineer and the applicant have reviewed drainage requirements and believe this criterion is satisfied. 7. For non-residential land use~; spaces between buildings are appropriately de-signed to accommodate any programmatic functions associated with the use. Staff Finding The pool area falls within this category and staff believes this area provides benefit to the lodge and its guests as well as the aesthetics of the project. C. Landscape Plan: The purpose of this standard is to ensure compatibility of the proposed landscape with the visual character of the city, with surrounding parcels, and with existing and proposed features of the subject property. The proposed development shall comply with the following: 1. The landscape plan exhibits a well designed treatment of exterior spaces, preserving existing significant vegetation, and provides an ample quantity and variety of ornamental plant species suitable for the Aspen area climate. Staff Finding The proposed landscape improvements will significantly improve this site. The existing surface parking along Hopkins A venue detracts from the streetscape and provides no pedestrian accommodation. Staff is recommending this be removed. The same could be said about the parking along Fourth Street, but staff believes this parking does serve the needs of the lodge. The sidewalk along Hopkins is in poor condition and should be replaced by the owner. It may be possible to redevelop this sidewalk adjacent to the property line. A traditional street tree pattern would improve the pedestrian experience. Similarly, the sidewalk along Fifth Street could be moved to be adjacent to the property line with a traditional street tree program. The proposed landscape treatment along Fifth Street may be over planted. 8 2. Significant existing natural and man-made site features, which provide uniqueness and interest in the landscape, are preserved or enhanced in an appropriate manner. 3. The proposed method of protecting existing vegetation and other landscape features is appropriate. Staff Finding The pool area is being preserved and staff believes this is important to the site. The applicant has agreed to work with the Parks Department on preserving vegetation in the construction phase. D. Architectural Character: It is the purpose of this standard to encourage architectural interest, variety, character, and visual identity in the proposed development and within the City while promoting efficient use of resources. Architectural character is based upon the suitability of a building for its purposes, legibility of the building's use, the building's proposed massing, proportion, scale, orientation to public spaces and other buildings, use of materials, and other attributes, which may significantly represent the character of the proposed development. There shall be approved as part of the final development plan and architectural character plan, which adequately depicts the character of the proposed development, The proposed architecture of the development shall: I. be compatible with or enhance the visual character of the city, appropriately relate to existing and proposed architecture of the property, represent a character suitable for, and indicative of, the intended use, and respect the scale and massing of nearby historical and cultural resources. . Staff Finding The architectural character of this proposal is appropriate for the proposed use and for the immediate vicinity. The proposal is similar to the east wing and minimizes the effects of height to the extent practical. 2. Incorporate, to the extent practical, natural heating and cooling by taking advantage of the property's solar access, shade, and vegetation and by use of non - or less-intensive mechanical systems. Staff Finding The proposal does not include any special systems. The site has limited solar access during winter months due to the proximity of the property to Shadow Mountain. The vegetation along the south property line will provide shape in summer months. 3. Accommodate the storage and shielding of snow, ice, and water in a safe an appropriate manner that does not require significant maintenance. 9 ___....___ __,m I Staff Finding The flat roofs essentially mitigate this concern. E. Lighting: The purpose of this standard is to ensure the exterior of the development will be lighted in an appropriate manner considering both public safety and general aesthetic concerns. The following standards shall be accomplished: 1. All lighting is proposed so as to prevent direct glare or hazardous interference of any king to adjoining streets or lands. Lighting of site features, structures, and access ways is proposed in an appropriate manner. 2. All exterior lighting shall be in compliance with the Outdoor Lighting Standards unless otherwise approved and noted in the final PUD documents. Up-lighting of site features, buildings, landscape elements, and lighting to call inordinate attention to the property is prohibited for residential development. Staff Finding The applicant has indicated full compliance with the City's lighting code will be achieved. F. Common Park, Open Space, or Recreation Area: If the proposed development includes a common park, open space, or recreation area for the mutual benefit of all development in the proposed PUD, the following criteria shall be met: 1. The proposed amount, location, and design of the common park, open space, or recreation area enhances the character of the proposed development, considering existing and proposed structures and natural landscape features of the property, provides visual relief to the property's built form, and is available to the mutual benefit of the various land uses and property users of the PUD. 2. A proportionate, undivided interest in all common park and recreation areas is deeded in perpetuity (not for a number of years) to each lot or dwelling unit owner within the PUD or ownership is proposed in a similar manner. 3. There is proposed an adequate assurance through legal instrument for the permanent care and maintenance of open spaces, recreation areas, and shared facilities together with a deed restriction against future residential, commercial, or industrial development. Staff Finding The pools area could be considered such a common amenity. Because the project does not include separate lots with individual structures and because the pool amenity is primarily for the lodging guests, staff does not believe that a common undivided interest in the pool is necessary. 10 .-----------.-,--1 G. Utilities and Public Facilities: The purpose of this standard is to ensure the development does not impose any undue burden on the City's infrastructure capabilities and that the public does not incur an unjustified financial burden. The proposed utilities and public facilities associated with the development shall comply with the following: 1. Adequate public infrastructure facilities exist to accommodate the development. 1. Adverse impacts on public infrastructure by the development w.ill be mitigated by the necessary improvements at the sole cost of the developer. 3. Oversized utilities, public facilities, or site improvements are provided appropriately and where the developer is reimbursed proportionately for the additional improvement. Staff Finding There exists adequate infrastructure to accommodate this proposal. The applicant will be required to provide service upgrades as necessary. No City or other utility agencies have requested oversizing. H. Access and Circulation (Only standards 1 & 1 apply to Minor PUD applications): The purpose of this standard is to ensure the development is easily accessible, does not unduly burden the surrounding road network. provides adequate pedestrian and recreational trail facilities and minimizes the use of security gates. The proposed access and circulation of the development shall meet the following criteria: 1. Each lot, structure, or other land use within the PUD has adequate access to a public street either directly or through and approved private road, a pedestrian way, or other area dedicated to public or private use. Staff Finding Proper access is maintained to the parcel and the and structure with this proposal. 1. The proposed development, vehicular access points, and parking arrangement do not create traffic congestion on the roads surrounding the proposed development, or such surrounding roads are proposed to be improved to accommodate the development. Staff Finding II Staff does not foresee this proposal creating undue congestion on the existing road network. The underground parking is access from the alley, which is the most preferred method. No upgrades to the road system are necessary although some curb/gutter improvements may be required by the City Engineer. This canbe handled as part of the platting and/or building permit review. J. Phasing of Development Plan. The purpose of these criteria is to ensure partially completed projects do not create an unnecessary burden on the public or surrounding property owners and impacts of an individual phase are mitigated adequately. If phasing of the development plan is proposed, each phase shall be defined in the adopted final PUD development plan. The phasing plan shall comply with the following: 1. All phases, including the initial phase, shall be designed to function as a complete development and shall not be reliant on subsequent phases. 2. The phasing plan describes physical areas insulating, to the extent practical, occupants of initial phases from the construction of later phases. 3. The proposed phasing plan ensures the necessary or proportionate improvements to public facilities, payment of impact fees and fees-in- lieu, construction of any facilities to be used jointly by residents of the PUD, construction of any required affordable housing, and any mitigation measures are realized concurrent or prior to the respective impacts associated with the phase. Staff Finding No phasing has been proposed. 12 --I" STAFF COMMENTS: REZONING Note: Requiredfor PUD Overlay. No change to underlying R-6 Zone is proposed. Section 26.310.040, Standards Applicable to Rezoning In reviewing an amendment to the official zone district map, the City Council and the Commission shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this title. Staff Finding: The proposed PUD Overlay is consistent with the Land Use Code and does not represent any potential conflicts. The Lodge Preservation Overlay requires that lodging redevelopment proceed through a PUD and the additional of a PUD overlay enables the dimensions of the project to sustain a greater scrutiny. Staff believes the PUD Overlay is appropriate and desired and is recommending approval. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Comprehensive Plan. Staff Finding: Please refer to comments related to the AACP on page 3. In summary, staff believes this application is in compliance with the AACP. C. Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering existing land use and ueighborhood characteristics. !Staff Finding: No change to the underlying zoning is being proposed, only a PUD overlay. The Overlay provides for a greater discussion and involvement of neighboring property owners as to the compatibility of the proposed development. Staff believes the proposal meets this standard. D. The effect of the proposed amendment on traffic generation and road safety. Staff Finding: The PUD criteria include traffic and road safety as review standards. The addition of a PUD overlay itself does not have any impact on road safety. E. Whether and the extent to which the proposed amendment would result in demands on public facilities, and whether and the extent to which the proposed amendment would exceed the eapacity of such facilities, including, but not limited to, transportation facilities, sewage facilities, water supply, parks, drainage, schools, and emergency medical facilities. Staff Finding: 13 --<. The utility and infrastructure needs for the project have been addressed in the PUD application. Because of the location of the development and existing capacities, no significant up-grades are required to accommodate this development. To the extent that upgrades to the existing systems are necessary, these will be paid for by the applicant and not by the general public. F. Whether and the extent to which the proposed amendment would result in significant adverse impacts on the natural environment. Staff Finding: Staff believes the proposed zoning overlay and the proposed development do not represent adverse impacts upon the natural environment. Sufficient criteria to evaluate potential impacts on the natural environment are included as PUD criteria and the overlay actually ensures the community a greater degree of scrutiny. G. Whether the proposed amendment is consistent and compatible with the community character in the City of Aspen. Staff Finding: The overlay requires a greater degree of review than would otherwise be required and compatibility issues regarding proposed heights, FAR, setbacks, etc. use can be more thoroughly evaluated with the PUD overlay. H. Whether there have been ehanged conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. Staff Finding: A change in conditions is not a prerequisite to rezoning. This criterion only requires that any changed conditions be considered upon requests for rezoning. There is no particular change other than that the existing development is in significant need of refurbishment. The LP overlay requires that the dimensions be established through the PUD process. The addition of a PUD overlay would enable the appropriate dimensions to be determined for the redevelopment. Staff believes this criterion has been met and supports the zoning of the property to include a PUD Overlay. I. Whether the proposed amendment would be in conflict with the public interest, and is in harmony with the purpose and intent of this title. Staff finding: Staff does not believe the additional review and involvement of the community required by the PUD Overlay is in conflict with the public interest. The overlay enables the project to withstand greater public scrutiny and a more-involved community decision process.. 14 ---- - - -I -- ^^ r, CItr/S P;C#J~ (.e) M fV\ l) ,., /*1 :J:>Ev c~ fM(;1) T C. c-Jc.., 7J ~ ~ 130 S. Ga~o ST(/'~+ -As,eu1 . a; 3/;:' / I 1/"1/ orp e~~. t. Ntw- jliILc..L :.t- {lo / 010 ~ ~ ~~~A ~ (' ~n", ~f. /t/ ~ '~~'1 ~ '\(? ~ (f' ~ .~ '1-" (CP '. ~Mb1.~ Lods e. :JJeCt V' M,:{. ~ t!NI . (\t'1 L)J'if ~:t ~ ~ MA -As~ elf y. ~ I'S' l-t.(W s a.-v\ct t1R.d IOl.l c:.,f- -3'2. ~ w I 4-b.,o1:::...,{ 5 , Wi ~f/1 v-hI/2-1? --fue. &~o-n~=6r ~+~ ~ '1 ",,tdt5. w,e t).JjA.L Ita i1c..e.t c::.,oo l ~ ai- -hta.... -6.e 'b ~ ~ D~ od? ~jAM. -nu lo~ ~ ~ ":l j .:5 ~ ~~..{c 5D II c..d ~fo SI~CV\ -io /k.e.,;, p" yd. w.e k.C).I.(.L ~ -tt.Ge .p LQ..yL~ ~ Me~ O1ttd.1r.l 'hlot- t-Okd- ~ ~ ~Li'&lf~""~ ~ ~~Ivl~ ~ ~~~I'hL ~ dtCW(\C-~ ~y.,~1Z M.4~ll.,b~~ ~ LI.}~oe k q ~ ~ -\0 --\'k.e C\ ~, 0::1 {,() ~ ~ '-h.t.e MIll f6 ~. UJ~ t4u~ferl + Yt.M..:, f" 'J~c::f Chl\c{ U/J.7I- -tke CI~ ~C.I i Jo Off''' H<-..vt- 4a IU<. ~ · ~~f~, ~tP~~ - ---1------- ~. ~i",.+ D ,> LAW OFFICE OF E. MICHAEL HOFFMAN, P.C. 106 SOUTH MILL STREET SUITE 202 ASPEN, COLORADO 81611 FACSIMILE (970) 920-1019 E-MAIL Mhoffman@emhlaw-aspen.com TELEPHONE (970) 544-3442 August 2, 2006 John Worcester, Esq. City Attorney, City of Aspen 130 S. Galena Street, Second Floor Aspen, Colorado 81611 I Re: Proposed Condominium Ownership of Boomerang Lodge Dear John: At the City Council meeting of July 10, 2006, several members of Council raised questions regarding the legal and regulatory context of the lodge and free-market units proposed to be condominiumized in the redevelopment of the Boomerang Lodge ("the Project"). This letter seeks to answer those questions on behalf of the owner of the project, Aspen FSP-ABR, LLC (the "Developer"). 1. The Citv Mav Not Impose Special Restrictions on the Proiect In Response to the Proposed Condominiumization of the Lodge and Free Market Units. The Developer plans to condominiumize each of the 53 lodge units as well as the six free market units and to include them in a single condominium association. Under the Colorado Common Interest Ownership Act ("CCIOA") the conversion of property to condominium ownership is required to be "transparent" in the planning and zonirig process. "In condominiums and cooperatives, no zoning, subdivision, or other real estate use law, ordinance, or regulation may prohibit the condominium or cooperative form of ownership or impose any requirement upon a condominium or cooperative which it would not impose upon a physiclUly identical development under a different form or ownership."! Although no Colorado case law exists which interprets the meaning of this section, some guidance can be had by examining the Uniform Common Interest Ownership Act, from which CCIOA was adapted. The purpose of this section is to resolve the relative roles of the state and local communities in regulating the creation of common interest communities. The ! C.R.S. S 38-33.3-106(2). ------1--.----- .--- ~. John Worcester, Esq. August 2, 2006 Page 2 underlying concept is to make clear that the municipality has a legitimate interest in regulating the use of real estate, in accordance with long established zoning, building code, and similar practices, and that such practices continue to have equal applicability to common interest communities as they do to purely rental projects. With respect to forms of ownership, however, this Act, as a state enactment, preempts the field and accordingly, except as provided in the Act, the municipalitv mav not regulate the form of ownership. as opposed to the use of that real estate? While the City is clearly empowered to regulate use of the Boomerang real property under its Land Use Code ("the Code"), it cannot impose other restrictions on the Project in response to the proposed condominiumization of units. For the reasons set forth below, we believe this limitation on local governmental authority represents a sensible approach toward condominium ownership. We also believe there is nothing about condominiumization which diminishes the Project's positive impacts on the City as measured by the goals stated in the Aspen' Area Community Plan (the "AACP") and the City's Lodge Incentive Program. 2. The Lodge Incentive Program Does Not Distinguish Between Condominiumized and Non-Condominiumized Units. The community's need to restore the many lodge rooms lost over the past ten years is clearly identified in the AACP as an important policy goal and was the impetus for the City's adoption of Incentive Lodge Program in Ordinance No.9, Series of 2005. The Incentive Lodge Program was incorporated in the current Land Use Code, Sections 26.710.190 and 26-710.310, which describe, respectively, the use and dimensional parameters allowed in the Lodge and Lodge Preservation Overlay zone districts, and in Section 26-470.040.C.3, which provides an exemption from the Growth Management System for the expansion of an existing lodge or development of a new lodge. To evaluate the relationship between condominiumized units and the Incentive Lodge Program, it is necessary to first understand the definition of a "Lodge" under Section 26-104.100 of the Code. A Lodge is the same as a "Hotel," which is defined as "[a] building or parcel containing individual units used for overnight lodging by the general public on a ~hort-term basis for a fee, with or without kitchens within individual units with or without meals provided, and which has common reservation and cleaning services, combined utilities, and on-site management and reception services." The Boomerang Lodge, as currently operated and as it will be operated in the future, provides all of the services required under this definition, and is and will be a traditional hotel. 2 Uniform Common Interest Ownership Act S 1-106, Comment 1(1994)(emphasis supplied). 1 - f:, .' John Worcester, Esq. August 2, 2006 Page 3 The regulatory definition of a "hotel" specificallv anticipates that some hotel "units" will be condominiumized and owned by private individuals: [O]ccupancy periods of a Hotel, or unit thereof, by anyone person or entity with an ownership interest in the Hotel, or unit thereof, shall not exceed 30 consecutive days or exceed 90 days within any calendar year, regardless of the form of ownership. Occupancy periods for persons or entities with no ownership interest (e.g. vacationers) shall be limited only by the 90-days per calendar year requirement. The Code was drafted to authorize the creation of condominiumized hotel rooms. As discussed below, nothing in the Incentive Lodge Program modifies this basic approach of the Code. On June 13,2006, the Planning and Zoning Commission granted growth management allotments for the six new free-market residences, two new affordable housing units and 18 newludge rooms requested in the Project, pursuant to the Incentive Lodge Development provisions of the Code3 To qualify for growth management approval under the Incentive Lodge Development program: the project must contain "a minimum of one lodge unit per five hundred (500) square feet of Lot Area and these lodge units average five hundred (500) square feet or less per unit,"5 unless this parameter is varied according to the exception provided in the applicable zone district provisions of the Code. Free-market units are permitted up to the limitations established in the applicable zone district provisions, provided the affordable housing required by Code is included in the application. If the density standard and the unit-size standard are met, a project is automatically entitled to the following benefits of the Incentive Lodge Program: a maximum height of 38 feet for sloped roofs or 42 feet for flat roofs,6 a total maximum floor area ratio of 3: 1 for parcels of 27,000 feet or less, and 2.5:1 for parcels greater than 27,000 square feet" and the right to build free-market 3 Aspen Planning and Zoning Commission Resolution No. , Series of 2006. 4 Code, Section 26-470.040.C.3. 5 Code, Section 26-470.040.C.3.c. These two requirements are defined as the "density standard" and the "unit-size standard." 6 Code, Section 26-710.190.D.7.c. 7 Code, Section 26-710.190D.10.A. -----4-.----- ~:. -,-,.' John Worcester, Esq. August 2, 2006 Page 4 residential units of up to 25% of the total FAR for the project including both unit and non-unit space.8 In other words, the "economic engine" rationale behind the Incentive Lodge program is "built in" to the Code. There are no provisions which distinguish between condominiumized and non- condominiumized lodge and free-market units. Nor should there be. As discussed in Section 1, above, this approach is consistent with Colorado law and, more importantly, promotes the City's goal to encourage the construction of additional lodge rooms in Aspen. 3. Economic Factors Require the Condominiumization Of and Subsequent Sale of These Lodge Units. Although the Developer acknowledges that the economic factors which impact this Project are not directly within the scope of City Council's consideration of its land use application, those factors are relevant to the broader policy question of whether the Lodge Incentive program is necessary and/or beneficial to the City. Unlike other projects which have sought to utilize the benefits of the Lodge Incentive program, this Developer has not asked to expand the free-market component beyond 25% ofthe Project's total FAR nor has it sought any other variances.. Sale of the free-market units in this Project will not supply enough cash to pay down the construction loan to a level which can be supported by the revenue provided by a traditional hotel. Council has voiced concem that the nightly rental rate of the redeveloped Boomerang Lodge may no longer be in the "moderate" category. The reality is that the location of the Project will largely dictate the nightly rental rate which can be charged. New and existing lodge projects in the Commercial Core will demand a much higher "rack rate" than this Project. The design of the Project acknowledges this reality. In combination with an average occupancy rate of around 60% for Aspen hotels, this Project simply cannot afford the high land and construction costs it faces without the condominiumization and sale of both the free-market and lodge units. 4. The Proiect's Condominium Declaration will Promote High Occupancv and Hotel Use. The Developer understands the City's need to insure that the redeveloped Boomerang Lodge is utilized for the purposes identified in the AACP and the Incentive Lodge program. The Developer plans to promote high levels of occupancy and hotel use of both the lodge and free- market units by establishing policies and procedures which advance this goal. Unfortunately the Developer is prohibited from directly requiring the rental of units in the Project under the securities laws of the United States.9 However, there is no law which prohibits a developer from 8 Code, Section 26-710.190D.IO.A.6. 9 Federal law defines an "investment contract" subject to federal securities regulation as "a contract, transaction, or scheme whereby a person invests money in a common enterprise and u_, ~. John Worcester, Esq. August 2, 2006 Page 5 encouraging owners to rent their units. For example, the Developer will enforce, as the policy of the Association, a requirement that all unit owners pay, in addition to the normal association fees, their share of the front desk, reservation, maintenance, housekeeping, and all other rental operation costs. The purpose of this provision, as well as other requirements which will be developed prior to completion of the Proj ect, is to encourage owners to consistently make their units available for short-term rental. If you need any other information conceming the issues raised by members of Council in connection with the Boomerang Lodge application, please let me know. Sincerely, E. MICHAEL HOFFMAN, P.C. {' ( .. E. Michael Hoffman , is led to expect profits solely from the efforts of the promoter or a third party." George K. Chamberlin, Annotation, What interests in real estate are "securities" within the meaning of S 3(a)(lO) of the Securities Exchange Act of 1934? 52 A.L.R. Fed 146 (2006), sununarizing Securities & Exchange Commission v. WJ Howey Co. 328 US 293, 90 L.Ed. 1244,66 S.Ct. 1100 (1946). Investment contracts, as securities, are subject to the registration requirements of federal securities law. The cost of registration is prohibitive. ...1 e~~,Io"'" E j e f f r e y h a I f e r t Y des 9 n 215 S Monarch Sl suite 202 Aspen, CoIor8do 81611 (970) 92~53S (970) 925-6035 Fax July 30, 2006 Chris Benden, AICP Director, Community Development Department City of Aspen 130 S. Galena Street, Third Floor Aspen, Colorado 81611 Re: Comments on Historic Pmlervation Commission Review of Proposed Boomerang Lodge Redevelopment Project Dear Chris: This correspondence is from my recollection of HPC's response to the proposed redevelopment plan for the Boomerang Lodge which is now being considered by City Council. My impression upon seeing the Council meeting of July 10, 2006 on Grassroots Television, was that the staff report of the HPC's consideration of the proposal was not fully consistent with my own recollection of our meeting with the developer whicl1 oceuned on February 22 of this year. My recollectioo of the developer's presentation to the HPC and the response of the Commission is as follows: . The developer was not required to make a prCKIII"tion to the HPC. The Boomenmg Lodge bas never been listed on the City's Inventoly of Historic Sites and Structures, although it was proposed for inclusion duriJIg the 1999-2000 reconsideration process. The developer's appearance before the HPC was voluntarily initiated by the developer. . The developer proposed to preserve the east wing of the Boometang Lodge bt>ca,,,,, that element of the building is the best example of CIIarlie Paterson's vision for the project. The other wings appear to not be as strongly influenced by Mr. Paterson's experiences at Taliesin. . It was my impression that a majority of the HPC would have supported an additioo to the east wing of the Lodge if the addition was detailed properly and, potentially, set back from --~j the existing face of the building. Preservation of the surrounding landscaping was also important to members of the Commission. . The creation of a sub-grade parking garage was seen as beneficial to the project because it would keep cars off the street where they could detract 1iom the historic context of the Boomerang. . Most of the m.....ung of new development on the IXllpCrty should be on the west and north sides, even if variances could be negotiated. This orientation of additional development on the site will allow the east wing to be seen in its historic context as viewed from Fourth Street. . If designing the third-tloor addition, the an:hitect should reference Mr. Paterson's detailing in the new conscructioo, but distinguish it from the original building by using more modem building methods and materials. . The HPC was interested in having the planning staff explore alternatives for the project which would allow the developer to create more massing on the north and west sides of the property while preserving the east wing. These alternatives included the possibility of increasing the height limits along the alley and Fifth Street and/or modifYing the average lodse room sizle and lodge room deosity nquirements of the City's lodge itwentive program.. Please feel free to call me if you need any additional infonnation. Yours Truly, Jeffrey PROJECT: Boomerang Lodge Remodel DATE: 7/31/06 E~~''-,'" F RECEIVED AUG 0 1 2006 ASPEN BUILDlNG DEPARTMENT City Council Revision 1. Building Height: a. Reduced the building height by 3'. The highest roof is 39' above the grade. It was 42. This represents 20% of roof area. b. 80% of entire roof area is at or below 37' c. The ridge height of Christiana buildings is more than 33' above the grade. Changes have been made: RENO' SMITH 'ARCHITECTS. L.t,C.' III 2. Change of Setback: a. Move balconies on the west side of building back. 5' setback for all sides of building. b. With the suggestion of Park and Recreation Department, only the under grade ramp is located inside 5' setback in order to save the existing trees. c. From Hopkins Ave. 12'-6" to the edge of deck; 18'-6" to the building. AUGUST RENO AlA SCOTT SMITH ALA 605 W MAiN ST. N" 002 3. Openings between buildings: a. There is not much openings between existing buildings as photos indicated. b. For the proposed new design, there are openings between existing East Wing and the new building in the center. c. 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N > > -'1---0-- ~.-, D~D 00 0 > ~ ~ .~~ g '01 \~ 17< '=I [(\ II !m ,Z 00 . , 9 , 9 , 9 9 , I , I , ------'---'---1--- , I , Ie < 1- IZ iG\ o 00 ~\i ~1G\ 101 I~ 1'-' o 101 1;U " i~ '01 l;u i:'" .r i<: ,- ,Z i(j\ it) !- ,z I'" ,(j\ III ';U 1. !tv , , I , I ----,-,-----,-j---- , I I , I I "'..~"'= [>[>[>[> r BOOMERANG LODGE REMODEL ~i~~ .nn 000 ::11 500 w. Hopkin3 Avenue i:~i Aspen, ColoIildo 81611 . .. .1 7Y0. b.+ r Daniel Verner 432 West Hopkins Avenue Aspen, Colorado 81611 Tel: (970) 920-3163 August14,2006 Steve Stu nda Boomerang Lodge 500 West Hopkins Avenue Aspen, Colorado 81611 Dear Steve: My wife and I want to support your plans for the Boomerang Lodge expansion as you currently have made them public under the following conditions. First that you do intend to have underground parking for 31 vehicles as you have stated. Secondly, you will try and monitor the parking on 4th Street as it applies to your guests and attempt to have them utilize the available underground parking spaces. Should both of our concerns be met, you can be assured that we will both support your project. Feel free to contact me if you have any further issues to discuss. Sincerely yours, ~-'}) )Jv0-^-- / I Daniel Verner . , , , . . I /GI2..A55 ,. ; I r I I I I , , ! 4-'-"" 1 -.-'- "'--J1I , .l4...t'-:-_'~ ' I ':.,.. t --sl:.1.5pe--rO" 0 "-" I r-J --I 1 , , ; I G'ro" i lll'flL I i -# 5Bo5'8 /.'... . , ----L ''... an "'" -o"~, 5'-(,," I AtJor;R1-.s~t-l (QL1DING:. p~)\O' .1>/1\l.\,.:5 , . / /@ /" '.-.---.,,--.-- '\" \. f--.........----;rr:- . II-":'::~:: I i, J I :.:~~,~:~ I c~~~'1 e'-OC-\<:' i ,': .L -- f 1:== IRE"'pL~CE' .~.- I I: .' .::;:.,... 1'.1" j ':" ~:-~~-.:~ ,": .;i: " . ~. . f I I'" .-..."....-. . l II~' ,,.T,,o'," r J e' I . "y' "l".V. I ___._._J'!_,_______ J...H......__ r.". ~~ -1-:- '"1' }-.. 4'-0" '-,,' J .... '7,-","". . H.1 .: L '. " ;=- -:01 II ~H1T';-r.'-: ,- ---, \ "'):.... '-.----."....- . 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V I - - -.. .1 -'- -:i. . j -'-' ~--~--. ~ ...: ..-.>--:' ",p '. I .1 ,-+~t ~ P- '> G II I T 1'"2-\\ CON ~ '10- . ...,;:rE?>:. "P.!J"-'N ADD I ~rlc...)'\\ AN G. .. F (),>.... TH(;', ,.. "'1' ~ ,10" IOf'.'~,y"" - A~rE"N, I . Cc"')L,. (.1. '-..- (::\ PROJECT: DATE: Boomerang Lodge Remodel 8/14/06 City Council Revision Changes have been made: 1, Building Height: a, We reduced the building height by 3', The highest roof is 39' above the grade. It was 42, This represents 20% of roof area, b. 80% of entire roof area is at or below 37' c, The ridge height of Christiana buildings is more than 35' above the grade. 2. Setback: a. Moved balconies on the West side of building back. 5' setback for all sides of building. b, With the suggestion of Park and Recreation Department, only the under grade ramp is located inside 5' setback in order to save the existing trees. c, From Hopkins Ave. 12'-6" to the edge of deck; 18'-6" to the building, 3. Openings between buildings: a. There is very little opening between existing buildings as photos indicate. b, For the proposed new design, there are openings between existing East Wing and the new building in the center. c, Between new building in the center and the new west wing, The connection has a 38',,8" setback from west wing and a 13'-2" setback from the new building in the center. 4. Percentage of Glazing (new building): In order to create a building with more open feeling. a, South Elevation: 63% b. North Elevation: 28% c. West Elevation: 51% Total Glazing: 47% Submitted by: Xiangdong (Don) Shi ~u l/'1rn~; 'Z~ IG'hi . ....J RENO, SMITH . A R. CHI T :Ii C T S, L. L. C. . III AUGUST RENO AlA SCOTT SMtTH ALA 605 W. MAiN 5T NO 002 ASPEN COLORADO 81611 970.925.5968 FACSIMILE 970.925.5993 E-MAIL office@renosmilh.com 0371 SOUTHSIDE DRIVE BASALT COLORADO 81621 970927.6834 FACSIMILE 970,927.6840 I. 0 0 If) Ill"" 0 N X 0 0 Ir 1-'>::: 0 '" < -\) 0. o. C'l.. Zlll O. d'l X =>1Il r- r- N X:::: N III N N ~ 8 Ul '" . 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TO: Mayor Klanderud and Aspen City Council Chris Bendon, Community Development Director ~W) Jennifer Phelan, Senior Long Range Plann~ Code Amendment: Land Use Code Section 26.710.090 (10)(a) and (b), Residential Multi-Family (R/MF) Zone District - Second Reading, Ordinance No.27, Series 2006 THRU: FROM: RE: DATE: August 14, 2006 SUMMARY: Dan Coleman (Applicant), represented by Eric Cohen, has requested a code amendment to Land Use Code Section 26,710.090, Residential Multi-Family (R/MF) zone district. The code amendment has been sponsored by the Community Development Staff because Staff feels the request merits a full discussion ("Sponsoring" allows a private party to apply for an amendment to the Land Use Code), The code amendment being requested would allow a non-historic detached residential or duplex dwelling on a non-conforming lot of 5,000 sq. ft. or less land one Historic Transferable Development Right (TDR) of 250 sq. ft of allowable floor area. As proposed, the landing of a TDR would not be available to a nonconforming use or structure. The Applicant is requesting the proposed amendment because he contends that these smaller lots are not conducive for the development of multi-family housing. REVIEW PROCESS: The Planning and Zoning Commission is the recommending body to City Council on the proposed code amendment pursuant to Land Use Code Section 26.310, Amendments to the Land Use Code and Official Zone District Map. City Council shall then consider the code amendment and be the final decision making body. At a public hearing on June 6, 2006, the Planning and Zoning Commission recommended denial of the application by a four to one (4 to 1) vote. STAFF COMMENTS: The existing language that is proposed to be amended reads as follows: Land Use Code Sectioi126.710.090(D)(10)(a) and (b), Floor Area Ratio (FAR) a. Detached residential and Duplex dwellings established prior to the adoption of Ordinance 27, Series of 2004: 100% of the allowable floor area of an equivalent- sized lot located in the R6 zone district. (See R6 Zone District.) Receipt of a Development Order shall constitute the date the use was established. Replacement after Demolition shall not effect a new establishment date for the purposes of this section, City of Aspen Historic Transferable Development Rights shall not be extinguished in this zone district and shall not permit additional floor area. b. Detached residential and Duplex dwellings established after the adoption of Ordinance 27, Series of 2004: 80% of the allowable floor area of an equivalent- sized lot located in the R6 zone district. (See R6 Zone District.) City of Aspen Historic Transferable Development Rights shall not be extinguished in this zone district and shall not permit additional floor area. The Applicant's proposed language is as follows: Land Use Code Section 26.710.090(O)(a) and (b), Floor Area Ratio (FAR) a. Detached residential and Duplex dwellings established prior to the adoption of Ordinance 27, Series of 2004: 100% of the allowable floor area of an equivalent- sized lot located in the R6 zone district. (See R6 Zone District.) Receipt of a Development Order shall constitute the date the use was established. Replacement after Demolition shall not effect a new establishment date for the purposes of this section. City of Aspen Historic Transferable Development Rights shall not be extinguished in this zone district and shall not permit additional floor area except in the case of a lot of less than 5,000 square feet. In this circumstance an Aspen Historic Transferable Development Right certificate may be extinguished pursuant to Section 26.535, Transferable Development Rights, and shall allow an additional 250 square feet of Floor Area. No more than one Floor Area increase shall be allowed per property. Properties listed on the Inventory of Historic Sites and Structures shall not be eligible for this Floor Area increase. Non-conforming uses and structures shall not be eligible for this floor area increase. b. Detached residential and Duplex dwellings established after the adoption of Ordinance 27, Series of 2004: 80% of the allowable floor area of an equivalent- sized lot located in the R6 zone district. (See R6 Zone District.) City of Aspen Historic Transferable Development Rights shall not be extinguished in this zone district and shall not permit additional floor area except in the case of a lot of less than 5,000 square feet. In this circumstance an Aspen Historic Transferable Development Right certificate may be extinguished pursuant to Section 26.535, Transferable Development Rights, and shall allow an additional 250 square feet of Floor Area. No more than one Floor Area increase shall be allowed per property. Properties listed on the Inventory of Historic Sites and Structures shall not be eligible for this Floor Area increase. Non-conforming uses and structures shall not be eligible for this floor area increase. The Applicant has expressed that there are some lots in the R/MF zone district that are less than 5,000 square feet that are not suitable for multi-family residential development. Additionally, the Applicant purports that creating more lots that would allow for the landing of a TDR would provide a community benefit by creating an additional avenue to aid in the success of the TDR program. After working with the GIS Department, staff has identified, to the best of its ability, a totlU of nine (9) lots in the R/MF zone district that would be able to land a TDR (Exhibit B). As proposed, only non-historic detached residential and duplex dwellings on a lot ofless than 5,000 square feet would be allowed to land one TDR. The last sentence of the proposed code amendment disallows a non-conforming use or structure from landing a TDR. Staff feels that this last sentence should be considered for omission. The sub-section that the proposed amendment is added to is specific to only a detached residential or duplex dwelling so the language with regard to nonconforming uses is not necessary. Additionally, the prohibition of a nonconforming structure from landing a TDR would prohibit a non-historic detached residential or duplex dwelling on a lot of less than 5,000 sq. ft. from landing a TDR if, for example, the existing structure did not meet the underlying minimum yard setbacks, The Land Use Code's Nonconformities chapter would appropriately handle any new development by allowing a nonconforming structure to be enlarged or expanded only in a manner that does not increase the nonconformity. The Applicant states that, "a nonconforming, smaller lot, is unfairly penalized with a 20% reduction in FAR for a single family home, compared to that in the R-6 zone district." As a point of clarification, a reduction in allowable floor area, at 80% rather than 100% of the Medium-Density Residential (R-6) zone district, is only assessed on detached residential or duplex dwellings when the use is established subsequent to the passage of Ordinance 27, Series 2004. Any detached residential or duplex use of a lot that existed prior to October 27, 2004 is allowed to 100% of the allowable floor area of an equivalent sized lot located in the R-6 zone district. Only newly established detached residential or duplex uses are permitted at a reduced allowable floor area. Staff agrees with the Applicant's suggestion that allowing these nonconforming lots to land a TDR could potentially aid in the success of the program. However, allowing additional square footage on a nonconforming lot of record contradicts one of the underlying premises of how nonconformities are regulated. A non conformity can be a use (for example a triplex that is in a zone district that only allows single-family uses), a structure (that does not meet required minimum yard setbacks), or lot (that does not meet the minimum required size) that was lawfully established but are in violation of the current terms and requirements of the Land Use Code. The purpose of the Nonconformities chapter is to, "permit nonconformities to continue, but not allow nonconformities to be enlarged or expanded." Additionally, the chapter is designed to, "curtail substantial investment in nonconformities in order to preserve the integrity of the zone districts and the other provisions of this Title (the Land Use Code)." The ability to land additional floor area for a duplex or detached residential dwelling would create additional, new investment in the nonconformity which conflicts with the intent of the nonconformity regulations. Another point to consider is the purpose of the Residential Multi-Family (R/MF) zone district. As noted on the zone district standards, the purpose is to provide land, "for intensive long-term residential purposes." The standards provide for larger floor areas when multi- family residential development is proposed at higher densities and a reduction in allowable floor area when new single family and duplex development is proposed. The Land Use Code as written provides disincentives when development of new single family and duplex development is proposed in the RlMF zone district and the potential for additional floor area, by the landing of a TDR, conflicts with the intent of the zone district regulations. Staff believes that although there is merit in expanding receiving sites for the landing of TDRs, the proposed code amendment conflicts with the intent of both the Nonconformities chapter and Residential Multi-Family (RlMF) zone district chapter, This also addresses a very specific segment of properties in the R/MF zone district, which is typically not the goal of regulations. For these reasons, staff does not believe the amendment satisfies all of the review standards for approving a code amendment. STAFF RECOMMENDATION: Staffrecommends that the City Council not approve the code amendment as the effect of the proposed language would conflict with the purpose of the nonconformities chapter of the Land Use Code. The proposed motion is worded in the affirmative, reflecting a scenario where the Applicant's request is granted. If the Council were to deny any the Applicant's request, the ordinance, if seconded, would not receive a majority vote in the affirmative. If City Council prefers to approve the code amendment, Staff would recommend amending the proposal so that a TDR can only be landed on those lots that had established a detached residential or duplex use on a lot prior to the effective date of Ordinance No. 27, Series 2004 (only allowing the amendment for Section 26.710.090 (I0)(a)) and removing the last sentence of the proposed amendment with regard to nonconforming uses and structures. Ordinance No. 27, (Series 2006) would need to be amended by: 1) the deletion of the last sentence that states, "Non, conforming uses and structures shall not be eligible for this floor area increase," of the proposed code amendment language within Section 1 of Ordinance No.27 (Series 2006); and, 2) the deletion of Section 2 and the renumbering of the subsequent sections of Ordinance No.27 (Series2006). CITY MANAGER'S COMMENTS: RECOMMENDED MOTION: "I move to approve Ordinance No. 27, Series of 2006, approving the proposed land use code amendments to Land Use Code Section 26.71O.090(10)(a) and (b), Residential Multi-Family (R/MF) Zone District: Floor Area Ratio (FAR), allowing for TDRs to be landed on a non- historic nonconforming lot of 5,000 sq. ft. or less with a single-family or duplex structure upon it in the R/MF zone district." ATTACHMENTS: Exhibit A -- Review Criteria and Staff Findings Exhibit B -- Lots in the R/MF zone district that area available to land a TDR Exhibit C -- Application Exhibit D -- P&Z Resolution of June 6, 2006 Exhibit E -- P&Z Minutes of June 6, 2006 ORDINANCE NO. 27 (SERIES OF 2006) AN ORDINANCE OF THE CITY OF ASPEN CITY COUNCIL APPROVING CODE AMENDMENTS TO SECTIONS 26.7IO.090(lO)(a) AND (b), FLOOR AREA RATIO (FAR) OF THE CITY OF ASPEN MUNICIPAL CODE. WHEREAS, Dan Coleman represented by Eric Cohen has submitted an application for an amendment to Title 26, the City of Aspen Land Use Code to amend Section 26.71O.090(10)(a) and (b), Floor Area Ratio (FAR) of the Residential Multi- Family (R/MF) zone district, to allow a non,historic detached residential or duplex dwelling on a non-conforming lot of 5,000 sq. ft. or less land one Historic Transferable Development Right (TDR); and, WHEREAS, the Community Development Director has sponsored the proposed code amendment to be heard by the Planning and Zoning Commission and City Council; and, WHEREAS, pursuant to Sections 26.310.040, the Planning and Zoning Commission, in accordance with the procedures, standards, and limitations of this Chapter, shall by resolution recommend that City Council approve, approve with conditions, or deny a Code Amendment application, after considering a recommendation by the Community Development Department and taking and considering public comments; and, WHEREAS, the Planning and Zoning Commission conducted a public hearing, considered the recommendation of the Community Development Director and public testimony on the proposed Code Amendment; and, WHEREAS, during a public hearing on June 6, 2006, the Planning and Zoning Commission did not approve Resolution No. 22, Series of 2006, by a four to one (4-1) vote, and recommends that that the City Council deny the land code amendment to amend Sections 26.71O.090(10)(a) and (b), Floor Area Ratio (FAR) of the Residential Multi-Family (R/MF) zone district to allow a non,historic detached residential or duplex dwelling on a non, conforming lot of 5,000 sq. ft. or less land one Historic Transferable Development Right (TDR); and, WHEREAS, the Aspen City Council has reviewed and considered the code amendments under the applicable provisions of the Municipal Code as identified herein, has taken public testimony, and heard the recommendations of the Planning and Zoning Commission and Community Development Director on August 14, 2006, 2006; and, WHEREAS, the City Council finds that the Code Amendment proposal meets or exceeds all applicable amendment standards and that the approval of the Code Amendment, is consistent with the goals and elements of the Aspen Area Community Plan; and, Page 1 of3 WHEREAS, the Aspen City Council finds that this ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1: Section 26.710.090 (IO)(a) of the Municipal Code, which section set forth the allowable floor area for detached residential and duplex dwellings when the use was established prior to the effective date of Ordinance No. 27, Series 2004, in the Residential Multi- Family zone district be amended to read as follows: Land Use Code Section 26.710.090(D)(a) and (b), Floor Area Ratio (FAR) a. Detached residential and Duplex dwellings established prior to the adoption of Ordinance 27, Series of 2004: 100% of the allowable floor area of an equivalent,sized lot located in the R6 zone district. (See R6 Zone District.) Receipt of a Development Order shall constitute the date the use was established. Replacement after Demolition shall not effect a new establishment date for the purposes of this section, City of Aspen Historic Transferable Development Rights shall not be extinguished in this zone district and shall not permit additional floor area except in the case of a lot of less than 5,000 square feet. In this circumstance an Aspen Historic Transferable Development Right certificate may be extinguished pursuant to Section 26.535, Transferable Development Rights, and shall allow an additional 250 square feet of Floor Area. No more than one Floor Area increase shall be allowed per property. Properties listed on the Inventory of Historic Sites and Structures shall not be eligible for this Floor Area increase. Non-conforming uses and structures shall not be eligible for this floor area Increase. Section 2: Section 26,710.090 (lO)(b) of the Municipal Code, which section set forth the allowable floor area for detached residential and duplex dwellings when the use was established after the effective of Ordinance No. 27, Series 2004, in the Residential Multi,Family zone district be amended to read as follows: b. Detached residential and Duplex dwellings established after the adoption of Ordinance 27, Series of 2004: 80% of the allowable floor area of an equivalent-sized lot located in the R6 zone district. (See R6 Zone District.) City of Aspen Historic Transferable Development Rights shall not be extinguished in this zone district and shall not permit additional floor area except in the case of a lot of less than 5,000 square feet. In this circumstance an Aspen Historic Transferable Development Right certificate may be extinguished pursuant to Section 26.535, Transferable Development Rights, and shall allow an additional 250 square feet of Floor Area. No more than one Floor Area increase shall be allowed per property. Properties listed on the Page 2 of3 Inventory of Historic Sites and Structures shall not be eligible for this Floor Area increase. Non-conforming uses and structures shall not be eligible for this floor area increase. Section 3: This ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 4: If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. The City Clerk is directed, upon the adoption of this ordinance, to record a copy ofthis ordinance in the office of the Pitkin County Clerk and Recorder. Section 5: A public hearing on this ordinance shall be held on the 24th day of July 2006 and continued to August 14th, at a meeting of the Aspen City Council commencing at 5:00 p.m. in the City Council Chambers, Aspen City Hall, Aspen, Colorado, fifteen days prior to which hearing a public notice of the same shall be published in a newspaper of general circulation within the City of Aspen. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 26th day of June, 2006. Attest: Helen K. Klanderud, Mayor Kathryn S. Koch, City Clerk FINALLY, adopted, passed and approved this _ day of ---,2006. Attest: Kathryn S. Koch, City Clerk Helen K. Klanderud, Mayor Approved as to form: City Attorney Page 3 of3 EXHIBIT A AMENDMENT TO THE LAND USE CODE REVIEW CRITERIA & STAFF FINDINGS Section 26.310.040, Text Amendment Standards of Review In reviewing an amendment to the text of the Land Use Code or an amendment to the official zone district map, the City Council and the Commission shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this title. Staff Finding: Staff believes that the proposed amendment conflicts with the purpose of the nonconformities chapter of the Land Use Code. The purpose of the nonconformities chapter is to, "permit nonconformities to continue, but not allow nonconformities to be enlarged or expanded." Additionally, the chapter is designed to, "curtail substantial investment in nonconformities in order to preserve the integrity of the zone districts and the other provisions of this Title (the Land Use Code)". The ability to land additional floor area for a duplex or detached residential dwelling would create additional, new investment in the nonconformity. Staff finds that this criterion is not met. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Comprehensive Plan. Staff Finding: Staff does not believe that the proposed amendments are in conflict with the Aspen Area Community Plan and would provide additional sites to land a Transferable Development Right. The AACP section on historic preservation encourages the use of innovative ways (such as the TDR program) to make preservation work in Aspen. Staff finds this criterion to be met. C. Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering existing land use and neighborhood characteristics. D. The effect of the proposed amendment on traffic generation and road safety. Staff Finding: These two criteria apply to rezoning applications and do not apply to this text amendment. E. Whether and the extent to which the proposed amendment would result in demands on public facilities, and whether and the extent to which the proposed amendment would exceed the capacity of such facilities, including, but not limited to, transportation facilities, sewage facilities, water supply, parks, drainage, schools, and emergency medical facilities. Staff Finding: This criterion applies to rezoning applications and does not apply to this text amendment. F. Whether and the extent to which the proposed amendment would result in significant adverse impacts on the natural environment. Staff Finding: Staff does not feel that the proposed code amendments will result in adverse impacts on the natural environment. Staff finds this criterion to be met. G. Whether the proposed amendment is consistent and compatible with the community character in the City of Aspen. Staff Finding: As was described in Staffs response to review Standard A above, the code amendment pertains to only nonconforming lots of less than 5,000 square feet containing either a detached residential dwelling or a duplex. Staff would question whether adding additional floor area to a substandard lot is consistent with community character of Aspen. Staff does not find this criterion to be met. H. Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. Staff Finding: This criterion applies to rezoning applications and does not apply to this text amendment. I. Whether the proposed amendment would be in conflict with the public interest, and is in harmony with the purpose and intent of this title. Staif Finding: Staif feels that the proposed code amendment, although providing for additional TDR landing sites, will conflict with the intent of the Land Use Code with regard to nonconformities. Staff finds that this criterion is not met. tr ---,----1- ~B\\L. To: City of Aspen Community Development Department RE: Proposed Code Amendment for landing of Historical TDR's Planning and Zoning Commission and Staff, This letter is a request for a Code Amendment Change. Specifically, we would like to amend the restriction on the landing of historical TDR's in the R/MF Zone district for single family homes on lots ofless than 5,000 square feet. Currently the landing of Historical TDR's is prohibited in the RMF Zone district. The intent being that the additional FAR is to be landed on single family homes or duplexes; and that those types of uses are (rightly) discouraged in the RMF Zone. This is of course based on a conforming lot size of at least 9,000 ft. in RMF. However, there are a few lots in the RMF district that are significantly undersized, and not suitable for multifamily development. In this case the owner of a nonconforming, smaller lot, is unfairly penalized with a 20% reduction in FAR for a single family home, compared to that in the R-6 Zone District. We would like an amendment to the Historical TDR program that would allow for the landing of a Historical TDR on a lot of less than 5,000 square feet in the RMF Zone District. We feel that this would more accurately portray the intent of the program, and provide a community benefit by creating another avenue to help in the success of the TDRprogram. The additional 250 ft. of FAR, is less than half of what is taken away with the RMF zoning, and arguably less objectionable than adding that 250 ft. to the full FAR ofa home in the R-6 or R-15 Zone Districts. Rather than strike or eliminate current language in the code we propose adding the following language to the end of paragraphs lO.a. and 10.b. of Section 26,710.090 The R/MF Zone District: "; except in the case of a lot of less than 5,000 square feet. In this circumstance an Aspen Historic Transferable Development Right certificate may be extinguished pursuant to Section 26.535, Transferable Development Rights, and shall allow an additional 250 square feet of Floor Area. No more than one Floor Area increase shall be aI/owed per property. Properties listed on the Inventory of Historic Sites and Structures shall not be eligible for this Floor Area increase. Non-conforming uses and structures shall not be eligible for this Floor Area increase n. Thank you for your consideration of this issue, Dan Coleman 1016 East Hopkins Ave. 1 ~, ApPLICANT: ATTACHMENT 2 -LAND USE APPLICATION Name: l::hr") Go\ Location: PROJECT: IN=" Address: Phone #: TYPE OF APPLICATION: (please check all that apply): REPRESENTATIVE: Name: Address: Phone #: Lu0. ~ co&... ~t"'\e.A'T D Conditional Use D Special Review D Design Review Appeal D GMQS Allotment D GMQS Exemption D ESA - 8040 Greenline, Stream Margin, Hallam Lake Bluff, MOWltain View Plane D Lot Split D Lot Line Ad'ustment EXISTING CONDITIONS: \\ /'" , D Conceptual PUD D FinalPUD (&PUD Amendment) D Conceptual SPA D Final SPA (& SPA Amendment) D Subdivision D Subdivision Exemption (includes condominiumization) D D Conceptual Historic Devt. D Final Historic Development D Minor Historic Devt. D Historic Demolition D Historic Designation D Small Lodge Conversion! Expansion D Other: PROPOSAL: ~ ~~c.re.cl \e...~ "'-ef7~ Co&e.. ~......e,j\- FEES DUE: $ \ 1:'60. ~~ Have you attached the foUowing? \ . D Pre-Application Conference Summary r- \11- Ii2l' Attachment #1, Signed Fee Agreement \ I D Response to Attachment #3, Dimensional Requirements Form f\-.t G:l Response to Attachment #4, Submittal Requirements, Including Written Responses to Review Standards AU plaus that are larger than 8.5" x 11" must be folded and a floppy disk with an electronic copy of aU written text (Microsoft Word Format) must he submitted as part ofthe applicatiou. I, EXHIBIT A REVIEW CRITERIA REWNING REVIEW CRITERIA In reviewing an amendment to the official zone district map, the Planning and Zoning Commission and City Council shall consider: A. Whether the proposed amendment is in conflict with any applicable portions of this title. We do not feel this minor Code Amendment is in conflict with the underlying zoning. Single Family home is an allowed use in this Zone district. B. Whether the proposed amendment is consistent with all elements of the Aspen Area Comprehensive Plan. We believe that this code change will allow for a better and less onerous distribution of the 250 ft. of FAR, onto a property that has had it's FAR reduced by roughly 500 ft. (depending on the actnallot size); which is consistent with the design objectives in the AACP. C. Whether the proposed amendment is compatible with surrounding zone districts and land uses, considering existing land use and neighborhood characteristics. There are numerous uses currently in the RMF; including Multi family, duplex and single family home. Because ofthe diminutive size ofa less than 5,000 ft. lot, multi-family development is not practical. The FAR, and subsequent massing, will still be less than a multi-family development in the neighborhood. D. The effect of the proposed amendment on traffic generation and road safety. The additional square feet should have no negative impact on traffic or road safety. E. Whether and the extent to which the proposed amendment would result in demands on public facilities, and whether the extent to which the proposed amendment would exceed the capacity of such facilities, including, but not limited to, transportation facilities, sewage facilities, water supply, parks, drainage, schools, and emergency medical facilities. There will not be an increase in the demand for public facilities as a result of the proposed request. F. Whether and the extent to which the proposed amendment would result in significant adverse impacts on the natural environment. We do not believe that the proposed minor code amendment application would result in significant adverse impacts on the environment. G. Whether the proposed amendment is consistent and compatible with the community character in the City of Aspen. Again, these lots are penalized for being nonconforming (too small) in size, to adequately support a multi-family project; and a single family home with FAR that is still less than what is allowed in the R-6 or R-15 zone districts is totally compatible with the community character in the City of Aspen H. Whether there have been changed conditions affecting the subject parcel or the surrounding neighborhood which support the proposed amendment. Yes, the recent reduction in FAR for a single family home in the RMF (to promote multi-family development) has negatively affected these smaller, non-conforming lots. In addition the City of Aspen Histoprical TDR program has provided an avenue to "buy back" a portion of that FAR, and in turn help[ support the TDR program. I. Whether the proposed amendment would be in conflict with the public interest, and is in harmony with the purpose and intent of this title. We do not believe this would be in conflict with any public interest. In fact, by helping to support the Historical TDR program, this amendment proposal would further the stated values of the Community. ------~I ~B\\ ]) RESOLUTION NO. U- (SERIES OF 2006) A RESOLUTION OF THE CITY OF ASPEN PLANNING AND ZONING COMMISSION RECOMMENDING THAT CITY COUNCIL DENY TEXT AMENDMENTS THAT AMEND MUNICIPAL CODE SECTION 26.710.090(10)(3) AND (b), FLOOR AREA RATIO (FAR), TO ALLOW A NON-IDSTORIC DETACHED RESIDENTIAL OR DUPLEX DWELLING ON A NONCONFORMING LOT OF LESS THAN 5,000 SQ. Fr. OR LESS LAND ONE HISTORIC TRANSFERABLE DEVELOPMENT RIGHT IN THE RESIDENTIAL MULTI-FAMLY (R/MF) ZONE DISTRICT, CITY OF ASPEN, PITKIN COUNTY, COLORADO. WHEREAS, Dan Coleman represented by Eric Cohen has submitted an application for an amendment to Title 26, the City of Aspen Land Use Code to amend Section 26.7IO,090(1O)(a) and (b), Floor Area Ratio (FAR) of the Residential Multi- Family (R/MF) zone district, to allow a non-historic detached residential or duplex dwelling on a non-conforming lot of 5,000 sq. ft. or less land one Historic Transferable Development Right (TDR); and, WHEREAS, the Community Development Director has sponsored the proposed code amendment to be heard by the Planning and Zoning Commission and City Council; and, WHEREAS, pursuant to Sections 26.310.040, the Planning and Zoning Commission, in accordance with the procedures, standards, and limitations of this Chapter, shall by resolution recommend that City Council approve, approve with conditions, or deny a Code Amendment application, after considering a recommendation by the Community Development Department and taking and considering public comments; and, WHEREAS, the Planning and Zoning Commission conducted a public hearing, considered the recommendation of the Community Development Director and public testimony on the proposed Code Amendment; and, WHEREAS, the Planning and Zoning Commission finds that the Code Amendment proposal does not meet or exceed all applicable amendment standards; and, WHEREAS, during a public hearing on June 6, 2006, the Planning and Zoning Commission recommended denial of Resolution No. ;l;)", Series of 2006, by a four to one ( 4-1) vote, that the City Council deny the land use code amendment to amend Section 26.710,090(1O)(a) and (b), Floor Area Ratio (FAR) of the Residential Multi-Family (R/MF) zone district to allow a non,historic detached residential or duplex dwelling on a non,conforming lot of 5,000 sq. ft. or less land one Historic Transferable Development Right (TOR); and, WHEREAS, the Aspen Planning and Zoning Commission fmds that this Resolution furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT RESOLVED BY THE CITY OF ASPEN PLANNING AND ZONING COMMISSION as follows: Section 1: Pursuant to the procedures and standards set forth in Title 26 of the Aspen Municipal Code, the Planning and Zoning Commission hereby recommends that City Council deny the following requested text code amendment to the Land Use Code Section 26.710.090(10)(a) and (b), Floor Area Ratio (FAR), for the Multi-Family Residential (R/MF) zone district to a allow a non-historic detached residential or duplex dwelling on a non-conforming lot of 5,000 sq. ft. or less land one Historic Transferable Development Right (TDR) of250 sq.ft., as noted in the following section: Section 2: Sections 26.71O.090(10)(a) and (b), Floor Area Ratio(FAR), of the Aspen Municipal Code shall be amended to read as follows: Land Use Code Section 26.710.090(D)(a) and (b), Floor Area Ratio (FAR) a. Detached residential and Duplex dwellings established prior to the adoption of Ordinance 27, Series of 2004: 100% of the allowable floor area of an equiyalent-sized lot located in the R6 zone district. (See R6 Zone District.) Receipt of a Development Order shall constitute the date the use was established. Replacement after Demolition shall not effect a new establishment date for the purposes of this section. City of Aspen Historic Transferable Development Rights shall not be extinguished in this zone district and shall not permit additional floor area except in the case of a lot of less than 5,000 square feet. In this circumstance an Aspen Historic Transferable Development Right certificate may be extinguished pursuant to Section 26.535. Transferable Development Rights, and shall allow an additional 250 square feet of Floor Area. No more than one Floor Area increase shall be allowed per property. Properties listed on the Inventory of Historic Sites and Structures shall not be eligible for this Floor Area increase. Non-conforming uses and structures shall not be eligible for this floor area increase. b. Detached residential and Duplex dwellings established after the adoption of Ordinance 27, Series of 2004: 80% of the allowable floor area of an equivalent-sized lot located in the R6 zone district. (See R6 Zone District.) City of Aspen Historic Transferable Development Rights shall not be extinguished in this zone district and shall not permit additional floor area except in the case of a lot of less than 5.000 square feet. In this circumstance an Aspen Historic Transferable Development Right certificate may be extinguished pursuant to Section 26.535, Transferable Development Rights. and shall allow an additiona1250 square feet of Floor Area. No more than one Floor Area increase shall be allowed per propertY. Properties listed on the Inventory of Historic Sites and Structures shall not be eligible for this Floor Area increase. Non-conforming uses and structures shall not be eligible for this floor area increase. , Section 3: This Resolution shall not effect any existing litigation and shall not operat~ as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be conducted and concluded under such prior ordinances. Section 4: If any section, subsection, sentence, clause, phrase, or portion of this Resolution is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Denied by the Commission at its regular meeting on June 6, 2006. PLANNING AND ZONING COMMISSION: ~~ Ruth Kruger, Vice-C?:::- APPR D AS TO FORM: ATTEST: 'x~ ackie Lothian, Deputy City Clerk ~g-r\ E CITY OF ASPEN PLANNING & ZONING COMMISSION Minutes - June 06. 2006 to 3 feet above the existing chimneys. Kruger asked for clarification on the heights of the addition to the chimneys. Skadron complimented the applicant on the improvement to the building but was not convinced this was the only design that was eclectic in the community. Skadron expressed concern for the height and would probably vote no on this application. MOTION: Dylan Johns moved to approve Resolution #21, series 2006, recommending City Council approve the text amendments to Section 26.71 0.190(D)(2)(a) Lodge Zone District with conditions the Lift One Condominiums and not to exceed the increase the height by three feet (3 ') for the chimneys; seconded by Mary Liz Wilson. Roll call vote: Speck, yes; Wilson, yes; Skadron, no; Johns, yes; Kruger, yes. APPROVED 4-1. Kruger requested that housing maintain the employee unit. MOTION: Steve Skadron moved to continue the growth management review for the Lift One Condominiums to September 5, 2006; seconded by Mary Liz Wilson. All infavor, APPROVED. PUBLIC HEARING: CODE AMENDMENT - HISTORIC PRESERVATION TDRS IN THE MULTI-FAMILY RESIDENTIAL DISTRICT Ruth Kruger opened the public hearing for the Historic Preservation TDRs. Jennifer Phelan provided the proof of notice and stated the applicant, Dan Coleman, was represented by Eric Cohen. Staff sponsored this code amendment. Phelan said the request was to allow non-conforming, non-historic lots 5,000 square feet or less with a single family or duplex residence the ability to land one historic 250 square foot TDR in the Residential Multi-family Zone District (RMF). Phlen stated the historic TDR was created by a person who owns a historic parcel with floor area that they agree not to develop and it was turned into a TDR. The intent of the historic TDR was to create an avenue for income generation for historic property. Phelan said there were a number of historic TDR landing sites in the R-6, R-15, R-15A, R-15B and R-30 Zone Districts, which were primarily single family and duplex developments. Phelan said after working with the assessor and GIS they found approximately 9 lots that could actually land these TDRs. 6 CITY OF ASPEN PLANNING & ZONING COMMISSION Minutes - June 06. 2006 Phelan said the reasons that staff would not support this code amendment were that these were non-conforming lots and the intent ofthe Residential Multi-family Zone District was to encourage Multi-family but not to encourage expansion of non- conformity development. Phelan said there were also merits to this code amendment. Staffrecommended that the TDR be added only to existing detached residences that were conforming. Ruth Kruger asked where Mr. Coleman's property was located. Eric Cohen replied that Mr. Coleman did not own any of those lots. Eric Cohen said that when the RMF language was rewritten as a disincentive to single family construction in RMF it further encouraged multi-family. Cohen said that realistically these were geared to single family or duplex dwellings. Cohen said that this would help the historic TDR program because there hasn't been enough demand for the historic TDR. Cohen stated that most non-conformities were lot size and making a non-conformity greater would be to shrink the lot; he did not believe that the non-conformity argument was relevant in this request. Skadron asked the purpose of a non-conformity. Phelan replied the non- conforming uses were uses that should not be in that zone district and non- conforming lots of record were smaller than what was allowed in that zone district. Phelan said the purpose of non-conformity in general was to create some parameters that maintain and don't fall into disrepair and that at some point in the future were replaced with a conforming structure. Cohen stated that a 3,000 square foot lot for example should have the same rights as the R-6land owner, which allowed the landing of historical TDRs; this program would allow the buy back of some of the area lost with replacement. Skadron asked Eric what was envisioned by the end result of this code amendment; was it larger houses on these lots. Cohen replied that they would get 250 feet more as in the Cemetery Lane area. Kruger said that she was still in a quandary as to why staff did not recommend approval. Phelan responded that staff felt this had validity but the intent was not to encourage additional investment in non-conformities. Dylan Johns said that regardless whatever brought this code amendment before P&Z right now the question still remains was this something that was wanted in this zone district. Johns said that the disincentives were put in place for a reason and it was a significant increase in the density by 250 square feet onto a 3,000 square foot lot. Johns did not feet this was a necessary code amendment. 7 CITY OF ASPEN PLANNING & ZONING COMMISSION Minutes - June 06. 2006 Skadron agreed with staff on the conflicts with the purpose of further increasing the non-conformities. Skadron stated this was unclear. MOTION: Mary Liz Wilson moved to approve Resolution #22, series of2006, recommending City Council approved the proposed land use amendments to Land Use Code Section 26.710.090 (10)(a)and (b), Residential Multi-family (RMF) Zone District: Floor Area Ration (FAR). Seconded by Dylan Johns. Roll call vote: Speck, no; Skadron, no; Johns, no; Wilson, no; Kruger, yes. DENIED 4-1. Meeting adjourned at 6:45pm. Jackie Lothian, Deputy City Clerk 8 , -I md- MEMORANDUM FROM: Mayor Klanderud and Aspen City Council Chris Bendon, Community Development Directo~ Sara Adams, Historic Preservation Planner TO: THRU: RE: 100 East Bleeker Street- Establishment of Two (2) Historic Transferable Development Right Certificates, Second Reading of Ordinance # 31 Series of 2006. DATE: August 14,2006 SUMMARY: The application before the City Council is for the establishment of two Historic Transferable Development Right (TDR) Certificates. Each TDR comprises 250 square feet of Floor Area. The purpose ofa TDR is to encourage the preservation of Historic Landmarks within the City of Aspen by permitting those property owners to sever and convey, as a separate development right, undeveloped Floor Area to be developed on a different and non-historic property within the City of Aspen. The program enables standard market forces, and the demand for residential Floor Area, to accomplish a community goal of preserving Aspen's heritage as reflected in its built environment. Funds that are gained from the sale ofTDR's may be invested back in the landmark. The proposed "sending site" is listed on the Aspen Inventory of Historic Sites and Structures and contains a miner's cottage that was built in 1884. The historic property comprises a 3,000 square foot lot located at the northeast comer of Garmish and Bleeker Streets, The neighborhood context consists of single family residences and the Yellow Brick School. Every property on this block except one is a historic landmark. The issuance of two TDR certificates to the sending site of 100 East Bleeker, will remove a total of 500 square feet of developable Floor Area from the historic property, thereby reducing the base allowable FAR from 2,400 to 1,900 square feet, ex eluding bonuses. City Council members expressed conern about the application at first reading; therefore, Staff compiled a breakdown of calculations to provide clarification and serve as a reference tool in Exhibit A. StatTrecommends that City Council validate and issue two Historic Transferable Development Right Certificates to the "sending site" of 100 East Bleeker Street. The review criteria are met and TDR certificates are a good tool for preserving a historic resource by reducing development pressure. I -----' APPLICANT: Nancy M. Spears represented by Haas Land Planning, LLC. PARCEL ID: 2735-124,37,005. ADDRESS: 100 E. Bleeker Street, Lot K, Block 65, City and Townsite of Aspen, Colorado. ZOl'lING: R,6, Residential TRANSFERABLE DEVELOPMENT RIGHTS (TDR) In order to complete the establishment of Historic Transferable Development Rights, the applicant shall meet the following requirements listed in Section 26,535.070 of the Aspen Land Use Code. Section 26.535.070 REVIEW CRITERIA FOR ESTABLISHMENT OF HISTORIC TRANSFERABLE DEVELOPMENT RIGHT. A Historic TDR Certificate may be established by the Mayor of the City of Aspen if the City Council, pursuant to adoption of an ordinance, finds all the following standards met: a) The Sending Site is a Historic Landmark on which the development of a single- family or duplex residence is a permitted use, pursuant to Chapter 26.710. Properties on which such development is a conditional use shall not be eligible. Staff Finding: The proposed 3,000 square foot sending site is located within the R-6 zone district, which allows residential single-family use. The sending site is a designated Historic Landmark, listed on the Aspen Inventory of Historic Landmark Sites and Structures. b) It is demonstrated that the Sending Site has permitted un built development rights, for either a single-family or duplex home, equaling or exceeding two-hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates requested. Staff Finding: The subject property has a total allowable FAR of 2,400 square feet for a 3,000 square foot property in the R-6 zone district. A total of 1,790 square feet of FAR exists on the property, which leaves a remainder of 610 square feet available for TDR establishment. The severance of two TDRs leaves 110 square feet of un built FAR on the property. c) It is demonstrated that the establishment of TDR Certificates will not create a nonconformity. In cases where nonconformity already exists, the action shall not increase the specific nonconformity. 2 Staff Finding: Staff finds that the approved development conforms to the R,6 zone as stated in Section 26.710 of the Land Use Code. Establishing two 250 square foot Historic TDR Certificates will not create or increase a non-conformity. d) The analysis of unbuilt development right shall only include the actual built development, any approved development order the allowable development right prescribed by zoning, and shall not include the potential of the Sending Site to gain Floor Area bonuses, exemptions, or similar potential development incentives. Staff Finding: This is a two part analysis: I) actual built development, i.e. the existing condition of the property and 2) analysis of approved development orders. I) The total existing built FAR on the property is 1,790 square feet out of an allowable FAR of 2,400 square feet. After severing two 250 square foot TDR certificates, 110 square feet of unbuilt FAR will remain on the property. 2) The R6 zone district allows 2,400 square feet of FAR on a 3,000 square foot property. HPC approved plans for the development of 2,400 square feet of FAR and awarded a 500 square feet of FAR bonus that is contingent on the establishment of two TDR certificates. Severing two TDR certificates fulfills the condition of approval required by HPC, which subsequently enables the property to utilize the 500 square foot FAR bonus to build out the approved design and rehabilitate the historic home. As stated in criteria (d) above, the potential for the "sending site" to gain a floor area bonus is not included in the analysis of unbuilt development rights because the bonus is contingent on the severing of 2 TDRs, which have yet to be approved by Council. Therefore, the potential to gain an FAR bonus is not realized. e) Any development order to develop Floor Area, beyond that remammg legally connected to the property after establishment of TDR Certificates, shall be considered null and void. Staff Finding: The property will not include any development order to develop Floor Area beyond that remaining legally connected to the property after the establishment of two TDR certificates. The applicant proposes that, between the reduced base FAR of 1,900 square feet and the 500 square foot bonus, the approved development order will not involve any more Floor Area than permissible under this standard. j) The proposed deed restriction permanently restricts the development of the property (the Sending Site) to an allowable Floor Area not exceeding the allowance for a single-family or duplex residence minus two hundred and Fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates established. The deed restriction shall not stipulate an absolute Floor Area, but shall stipulate a square footage reduction from the allowable Floor Area, as may be amended from 3 time to time. The Sending Site shall remain eligible for certain Floor Area incentives and/or exemptions as may be authorized by the City of Aspen Land Use Code, as may be amendedfrom time to time. Theform of the deed restriction shall be acceptable to the City Attorney. Staff Finding: The applicant proposes that the sending site will be deed restricted such that it will be limited to 500 square feet less than the allowable Floor Area under the applicable zoning and will remain eligible for certain Floor Area incentives. g) A real estate closing has been scheduled at which, upon satisfaction of all relevant requirements, the City shall execute and deliver the applicable number of Historic TDR Certificates to the Sending Site property owner and that property owner shall execute and deliver a deed restriction lessening the available development right of the subject property together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder's Office. Staff Finding: The application states that the requirements of section (g) are understood by the applicant and her legal counsel. h) It shall be the responsibility of the Sending Site property owner to provide building plans and a zoning analysis of the Sending Site to the satisfaction of the Community Development Director. Certain review fees may be required for the confirmation of built Floor Area. Staff Finding: The application demonstrates a clear understanding of the requirements of section (h). RECOMMENDATION: Staff recommends that Council approve Ordinance # 31, Series of 2006, the request for two Historic Transferable Development Right Certificates for the sending site located at 100 East Bleeker Street on Second Reading. RECOMMENDED MOTION: "I move to approve Ordinance #31, Series of2006, upon second reading." CITY MANAGER COMMENTS: Exhibits: Exhibit A - Calculations Exhibit B - Drawings Exhibit C - Application 4 ORDINANCE NO. 31 (SERIES OF 2006) AN ORDINANCE OF THE ASPEN CITY COUNCIL ESTABLISHING TWO (2) 250 SQUARE FEET OF FLOOR AREA HISTORIC TRANSERABLE DEVELOPMENT RIGHT CERTIFICATES FOR THE SENDING SITE OF 100 E. BLEEKER STREET, LOT K BLOCK 65 CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO ParcellD #: 2735-124-37-005. WHEREAS, the applicant, Nancy Spears, represented by Mitch Haas of Haas Land Planning LLC, has requested the establishment of two (2) Historic Transferable Development Right Certificates for the sending site located at 100 E. Bleeker Street, Lot K, Block 65, City and Townsite of Aspen, Colorado; and WHEREAS, in order to establish a Historic Transferable Development Right Certificate, the applicant shall meet the following requirements of Aspen Municipal Code: Section 26.535.070 which is as follows: 26.535.070, Review Criteria for the Establishment of Historic Transferable Development Ril!:ht. A Historic TDR Certificate for 250 square feet of Floor Area may be established by the Mayor of the City of Aspen if the City Council, pursuant to adoption of an ordinance, finding all the following standards met: a) The Sending Site is a Historic Landmark on which the development of a single-family or duplex residence is a permitted use, pursuant to Chapter 26.710. Properties on which such development is a conditional use shall not be eligible. b) It is demonstrated that the Sending Site has permitted unbuilt development rights, for either a single-family or duplex home, equaling or exceeding two-hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates requested. c) It is demonstrated that the establishment of TDR Certificates will not create a nonconformity. In cases where nonconformity already exists, the action shall not increase the specific nonconformity d) The analysis of un built development right shall not only include the actual built development, any approved development order the allowable development right prescribed by zoning, and shall not include the potential of the Sending Site to gain Floor Area bonuses, exemptions, or similar potential development incentives e) Any development order to develop Floor Area, beyond that remaining legally connected to the property after establishment of TDR Certificates, shall be considered null and void. 1) The proposed deed restriction permanently restricts the development of the property (the Sending Site) to an allowable Floor Area not exceeding the allowance for a single-family or duplex residence minus two hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates established. The deed restriction shall not stipulate an absolute Floor Area, but shall stipulate a square footage reduction from the allowable Floor Area, as may be amended from time to time. The Sending Site shall remain eligible for certain Floor Area incentives and/or exemptions as may be authorized by the City of Aspen Land Use Code, as may be amended from time to time. The form of the deed restriction shall be acceptable to the City Attorney. g) A real estate closing has been scheduled at which, upon satisfaction of all relevant requirements, the City shall execute and deliver the applicable number of Historic TDR Certificates to the Sending Site property owner and that property owner shall execute and deliver a deed restriction lessening the available development right of the subject property together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder's Office. h) It shall be the responsibility of the Sending Site property owner to provide building plans and a zoning analysis of the Sending Site to the satisfaction of the Community Development Director. Certain review fees may be requiredfor the confirmation of built Floor Area. WHEREAS, the Community Development Director reviewed and recommended approval of the application, finding that the applicable review standards have been met; and, WHEREAS, pursuant to Sections 26.535.040 of the Municipal Code, the City Council may establish Historic Transferable Development Rights during a duly noticed public hearing after taking and considering comments from the general public and recommendations from the Community Development Director; and WHEREAS, the City Council finds that the application meets or exceeds all applicable standards and that the establishment of Historic Transferable Development Rights is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: Section I The City Council finds that the application meets all required standards and eligibility as stated in Section 26.535.030 and Section 26.535.070, and applicant's submission is complete and sufficient to afford review and evaluation for approval; and Section 2 The City Council does hereby establish two (2) Historic Transferable Development Rights of 250 square feet of Floor Area to the sending site located at 100 E. Bleeker Street, Lot K, Block 65, City and Townsite of Aspen, Colorado with the following conditions: 1. Upon satisfaction of all requirements, the city and the applicant shall establish a date on which the respective Historic TDR Certificates shall be validated and issued by the City and a deed restriction on the property shall be accepted by the City and filed with the Pitkin County Clerk and Recorder. 2. On the mutually agreed upon date, the Mayor of the city of Aspen shall execute and deliver the applicable number of Historic TDR Certificates to the property owner and the property owner shall execute and deliver a deed restriction lessening the available development right of the Sending Site (100 East Bleeker Street, Lot K Block 65 City and Townsite of Aspen) by 500 square feet with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder's Office. Section 3: This Ordinance shall not affect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 4: If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 5: A public hearing on the ordinance will be held on the 14th day of August, 2006, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. Section 7: This ordinance shall become effective thirty (30) days following final passage. INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the lOth day of July, 2006, Helen Kalin Klanderud, Mayor Attest: Kathryn S. Koch, City Clerk FIN ALL Y, adopted, passed and approved this 14th day of August, 2006. Helen Kalin Klanderud, Mayor Attest: Kathryn S. Koch, City Clerk Approved as to form: John P. Worcester, City Attorney 100 East Bleeker Exhibit A CALCULA nONS: I) FAR calculation as written in Aspen Municipal Land Use Code: Lot size + zone district ~Allowable FAR 3,000 sq. ft. + R6 = 2,400 sq. ft. Allowable FAR 2) Existinl! Condition: Allowable FAR - Total Existing built FAR on property ~ Available unbuilt FAR 2,400 sq. ft. -1,790 sq.ft. = 610 sq. ft. 3) Unbuilt FAR available after Establishment of2 TDRs: Unbuilt FAR - TDR certificates = Available unbuilt FAR after severing 2 TDRs 610 sq. ft. - 2(250 sq. ft.) = 110 sq. ft. 4) Base Allowable FAR for Property after Establishment of2 TDRs Allowable FAR - TDR certificates = Base Allowable FAR after severing 2 TDRs 2,400 sq. ft. - 2(250 sq. ft.) = 1,900 sq. ft. 5) Available FAR after Approved Rehabilitation and Future Development: Allowable FAR after TDR Severance- Approved HPC plans for rehab/ development ~ Unbuilt FAR 1,900 sq. ft. - 2,400 sq. ft. = -500 sq. ft. 6) Unbuilt FAR after Completion ofProiect and Utilization of FAR Bonus (contingent on approval ofTDRs bv Council) Unbuilt FAR after Development of HPC Approved Plans + HPC FAR Bonus = Unbuilt FAR after Completion of Project, -500 sq. ft. + 500 sq. ft. FAR bonus ~ 0 sq. ft. 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LLC June 16,2006 Mrs. Amy Guthrie Aspen Historic Preservation Planner 130 South Galena Street Aspen, CO 81611 RE: Application for Establishment of Two (2) Historic Transferable Development Rights (TDR) for the Spears Sending Site (100 E. Bleeker Street) Dear Amy: Please consider this letter to constitute a formal request to establish 100 East Bleeker Street (Lot K, Block 65, City & Townsite of Aspen; Parcel Identification Number 2735-124-37-005) as a "Sending Site" for two (2) Historic TDR. The proposed sending site is a 3,000 square foot lot located at the northeast corner of Garmish and Bleeker Streets and is a designated Historic Landmark. The site is zoned R-6 and is surrounded by single family residences and the Yellow Brick School. The property is adjoined on three of its four sides by public rights-of-way: to the east is Garmish Street, to the north is an alley, and to the south is E. Bleeker Street. The adjacent property to the west is also a designated historic landmark. A vicinity map (not to scale) showing the location of the subject property is provided below. Vicinity Map The allowable FAR floor area for a 3,000 square foot lot in the R-6 zone district is 2,400sf, but since the HPC awarded the subjcct property a 500sf FAR bonus, 2,900sf of . 201 N. MILL STREET, SUITE 108' ASPEN, COLORADO' 81611 . . PHONE: (970) 925.7819 . FAX: (970) 925,7395 . . , J 00 E. Bleeker TDR Sending Site June J 6, 2006 Page 2 of4 FAR floor area is allowed on the subject site. The applicant plans to sever 500sf of this allowable FAR from the site as a pair of Transferable Development Rights (TDR), pending approval to do so. Review Criteria for Establishment of a Historic IDR, Section 26.535.070 A Historic TDR Certificate may be established by the Mayor of the City of Aspen if the City Council, pursuant to adoption ofan ordinance, finds all the following standards met: A. The Sending Site is a Historic Landmark on which the development of a single-family or duplex residence is a permitted use, pursuant to Chapter 26.7]0, Properties on which such development is a conditional use shall not be eligible. The proposed sending site is a 3,000 square foot lot located at the northeast corner of Garmish and Bleeker Streets and is a designated Historic Landmark. The site is zoned R -6 and single-family residential development is a permitted use. B, It is demonstrated that the Sending Site has permitted unbuilt development rights, for either a single-family or duplex home, equaling or exceeding two-hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates requested. The allowable FAR floor area for a 3,000 square foot lot in the R-6 zone district (such as the proposed sending site) is 2,400sf. In the subject case, the HPC awarded a 500sf FAR bonus with its conceptual approval of plans for work involving a remodel, addition, and historic restoration. Conscqucntly, the total allowed FAR on the subject site is 2,900sf. The HPC-approvetl plans r.all for tlevelopment of less than 2,400sfofFAR; therefore, more than 500sf of FAR available for single,family residential use on the subject site will be unbuilt and can accommodate two (2) TDR worth 250sf each. C. It is demonstrated that the establishment of TDR Certificates will not create a nonconformity. In cases where nonconformity already exists, the action shall not increase the specific nonconformity, Please refer to the response provided for the previous criterion, Development of the HPC-approved plans will use 1,900 square feet of base allowable FAR, plus the 500sf FAR bonus awarded by the HPC. This development conforms to the requirements of the R-6 Zone District, as varied by the HPC. Severing two TDR certificates worth 250sf each will not create or increase any nonconformities. D. The analysis of unbuilt development right shall on~v include the actual built development, any approved development order, the allowable 100 E. Bleeker TDR Sending Site June 16, 2006 Page 3 0[4 development right prescribed by zoning, and shall not include the potential of the Sending Site to gain Floor Area bonuses, exemptions, or similar potential development incentives. Please refer to the response provided for the previous criterion. Existing conditions floor plans and Floor Area calculations have been prepared by Rally Dupps, AlA, of Consortium Architects. The plans and Floor Area calculations show a total built Floor Area of 1,790sf, of which 4l8sf are in a detached garage that is not afforded an exemption due to lack of alley access, and 1,3 72sf are in the residence. Development of the HPC-approved plans will use 1,900 square feet of base allowable FAR, plus most of the 500sf FAR bonus that has been awarded by the HPc. For purposes ofthis application, the allowable FAR on the subject site will decrease from 2,400sf to 1,900sf, exclusive of the site's already realized potential to gain Floor Area bonuses. E. Any development order to develop Floor Area, beyond that remaining legally connected to the property after establishment oj TDR Certificates, shall be considered null and void. The property will not include development of Floor Area beyond that remaining legally connected to it after establishment of two TDR Certificates. Between the reduced base FAR of 1,900sf(remaining after severing two TDR) plus the FAR bonus awarded by the HPC, the approved development order will not involve any more Floor Area than permissible under this standard. F. The proposed deed restriction permanently restricts the development of the property (the Sending Site) to an allowable Floor Area not exceeding the allowance fur a sillgle-family 01' duplex I'esideflce minus twu hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates established. The deed restriction shall not stipulate an absolute Floor Area, but shall stipulate a square foutage reduction from the allowable Floor Area, as may be amended Jrom time to time. The Sending Site shall remain eligible for certain Floor Area incentives and/or exemptions as may be authorized by the City of Aspen Land Use Code, as may be amended from time to time. The Jorm oj the deed restriction shall be acceptable to the City Attorney. The sending site will be deed restricted in a manner acceptable to the City Attorney such that it will be limited to 500sf less than the allowable Floor Area under applicablc zoning, as may be amended from time to time, plus any potentially available Floor Area bunuses, exemptions, or similar potential development incentives. The deed restriction will be executed and recorded simultaneous with the closing discussed in the next standard. 100 E. Bleeker TDR Sending Site June 16, 2006 Page 40f4 G. A real estate closing has been scheduled at which, upon satisfaction of all relevant requirements, the City shall execute and deliver the applicable number of Historic TDR Certificates to the Sending Site property owner and that property owner shall execute and deliver a deed restriction lessening the available development right of the subject property together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder's Office. The requirements of this standard have been read and understood by the applicant and her legal counsel. It is requested that the closing be scheduled for a date as soon after adoption of the approval ordinance as practicable. H. It shall be the responsibility of the Sending Site property owner to provide building plans and a zoning analysis of the Sending Site to the satisfaction of the Community Development Director. Certain review fees may be required for the confirmation of built Floor Area. The sending site property owner will provide building plans and a zoning analysis, to the extent required by the Community Development Director, with the building permit application set for development of the HPC approved plans. The building application permit set will clearly demonstrate that the project's total FAR will not exceed that allowed after severing of the two TDR. Existing built FAR is 1, 790sf as demonstrated on the accompanying existing conditions floor plans. We hope the information and responses provided above prove helpful in your review, and we look forward to working with you toward approving this worthy application. If you should have any questions or desire any additional information, please c10 not h~sitHt~ to c.ont~ct m~, Yours truly, Haas Land Planning, LLC Mitch Haas, AICP Owner/Manager c: My Documents/City ApplicationslHPC Applications/Spears/fDR Application Pll.OJECI': Name: Location: Parcel 10 # Address: Phone #: Land Use Application . THE em or AsPEN - tiF (Indicatutroe1: address, lot & block number or metes and bounds description.of property) (REQUlRBD) :2't3G ~ l:ltt- ~t- 005 }l'ax#: E-mail: REpRESENTATIVE: Name: Address: Phone #: F:ax#: E-mail: TYPE OF AppUCAnoJII.: ~.ease check all 11mt a 1 : o Historic DesigQatjon o Certificate ofNp Negiltive Effect CI Certificate of Appropriateness 0, -Minor Historic Development o -Maj.or Hisooric Development o -ConeeptuallIistoric Development o -Fina1Hisoorio Developroent -Substantial Amendment o Relocation{~,on.oroff-site) o Demolition (total demolitl<m) o HistOric L8ndmark Lot Split @" (~lru<;+t 1O~ ~Ol~Sn-c: EXISTING CoNDITlOI'!.S: d/:lScfl lion of existi buildin ~ ~Rrk.M Texrtl ~ ~ 'PROPOSAL: descri lion of .osed buildin s, uses modifications etc. e€€ AfPUt~<<~ 1E",.,.g~ S~ :5t\'i?MI~ ~ t1ft ~AL.-S ~ET"IN FOR PE.roJJJl-;:'riT R!COI'O June 15,2006 Aspen Community Development Department 130 South Galena Street Aspen, CO 81611-1975 Re: 100 East Bleeker Street (Lot K, Block 65, City & Townsite of Aspen; Parcel ID 2735-124-37-005) Establishment as a TDR Sending Site To whom it may concern: I hereby authorize Haas Land Planning, LLC, to submit and process an application for the above-captioned approval with respect to my property located at 100 East Bleeker Street. Should you have any need to contact me during the course of your review, please do so through Haas Land Planning, LLC, whose address, telephone and fax numbers, and email address are provided in the application. Sincerely, Nan'~~ , . crrv OF ASPEN COMMUNITY DEVELOPMEJI.'1' DEPARTMENT At!reenleIlt for pavmentofCitvof AsoenDevelolllIlel1tA1J1)licationFees CITY OF ASPEN (hereillafter CITY) and Nancv M. S1lears (hereinafter APPLICANl) AGREE AS FOLLOWS: 1. muCANT has submitted to CITY anapp1ication for ,~'8l.t7ltI..)61r T1t ,%~ll\6 S:ri6 (hereillafter, TItE PROmC1). 2, APPLICAlilT 1.l1l.derstands and agrees'tbat City of Aspen brdinance No. 57 (Series of2000)~tabJJshes a fee structUre for Land the applications and the pa:vmentof all processing fees is A condition precedent 10 a determination of application completeness. 3, APPLICANT and {CITY agree that because of the size, nature or scope oI1he proposed proJec~ it is not possibte al this time 10 asoettain the full extent of the costs illvolved in processing the,application, APBI.lCANT and CITY lhttller agree-that;it is in the interesl of1l1e parties thai APl'LlCAlilT make payment.of an im'tlaL dt(lQsit and 10 tbereafterpennit additional coslS to be billed 10 APPLICANT on a IOODIlUybasis. APPLICANTilll!'c,cS addltional-coslnnayaeotllll following their bearings 1lIIdIor appmvals. APPLICANT agrees he will be Oeuefited by retaining.grearer,cash iliqnidity and will make additional pa:vmenls upon.notiflcaUoll by the WJ 'l when thq are necessary.as costs ate incomld. CITY agrees it will be benefited through the greater tertainty of ruovedllg ill; full costs to process APPLICANT'S application. 4. CITY 1/nd APPLICANT further agree that ftis ilnpracticable for, ClTI!' staff to complC!l> processing or present sufficient infOl1lllllion 10 the Planning Commission nnd/or City COIlncil1o enable the PIlloming t......,i!l$ion 1lIIdIor City COunci1 to mab legally required fmdirtgs for project consideration, unless current billirtgs,arepa1!l:ij! fun prior 10 decision. ~. Tbeil:fore. APPLICANT agrees that in conSideration of the ClTI!"s waiver of its tigbtto cQUtet,full :i~~.~::~'~~~~Pft)tia:a~,~::;:=~~~==~:.n:~~~~.=:: excee(j ~ initial4e os it, APJ>UCANT shall pay .QditiOJUl!IOOnth!y billblgs 10 ~U "f IO:relntbJIISC tbe Ctt:l1'lOrthe pro~""i1!!l of'1he; .tilIn _tinned above. incluilit1g plI>StapprOval ~lIfa lllfe QfS42ll.00 ~ hour overtheilli SIlcb periodic paymeI\l$ sbilll be made witWn30 daY$ of the billing dale. ~CANT lilJ:th!lI' agrpes thaf,ftjlute to !lay slleb accrued cas~ shAll be sroimds fot.S1lSpeliaiJlli oepl_sing, lliid ml!O ~ will buildfug I'ermitsbc iSSWld, until aU casts associated with case pra~Sfing have been paid. g;VOI' ASPEN t/;~'L1CAN~~~r___.____ C\)rill Btn1<Iwi ,-.,.,... / . ~ L Community DevelopmentDireelar Date: ./" _ry/./ 0/ 'r:1 r:; Bill To MailinS AddJess and Telephone NUIlJber. g. \SUpt10I't\..l!.o:cns \agrpayas. doc 02/01/06 /P.:!J ;;;t;~cJ --~ 9.:n; yrrlJ" ~~---- ftET~FORPEro~A~Er.TRECORD III III III J: .c ,g i p CIl C :; U; c( ~ ~ 8 ex> @8 '" 0 a.'" g.1Li '0 ~ .a:- CIl ~~ '" :>; a. '" a. '0 '" .g ~ m ~:3 ~ ~ F E .;J () E".;J .. c F ~ ~ J:! ~ (j ....J <l: <.> a: ~ w C/)/ Z) o J: e> z ~ ~ ...: ui o 11 '" :> .c - ...: ui o <0 M - o CIl :c ~ iii CIl .c - 6 G) ffi :;::;>.1: o...!! - ECIl'" CIlC'" xo.!! CIl >- '" 0-'- c6"fi I 1'- ..c ....:- ~ u:i en . co Not-: ~...'" -q-MLO ~'" II II N Q) Q) II "'",-" e!:>U mOG) e>J:O '" o o t::! .... - '" ~ o " ;j " ~ a: ~ '0 ...: ui o '" ... ~ <0 <0 '" ~ ... '" ~- OCll ...c; "''lil "l'l ~E CIl '" 8 .~ 0) U 0 '" ~l:: --C'jIU) -< 'I:: f/J (\I....... C. 't: <0 N ~ a.~ 0) :::::I en 0...... I "0 .- 2: Cl)O~_ t::><o'lil<'>"'~ Oeo co...: Cti .. t:I >0....... W 1i c::= o 10 ,c g~ ~~ a: 8.~ ala. CIl ;g ~ -q- ~ oci l:l ~ :J N e u Oll.] .EllS!'! ~:E OJ <> i2 0 ,El" ;g .~ e.:= -fill<> .El 0:; .,,>0-. Ej<"1 ~E~ ~ '3 jg .5 ~._ > " i2 0", " Zu> 11 '" C ~ 'x CIl ]9 {3. --.,., - - -.-- ----..,-.,.,.-_.,_..~- -_.~- .. --------.....-. -..-- - . - - -., ..--......- 118'8 0lMI0100 'NadSV .l33llJ.S~.lSYiIOO, NadSV ~O aJ.ISNMOJ. QNV All:) ')1101 '91lllOO18 g()(),L'UZ'.SUU Q113:ll1Vd I ~.at loMl:.. .u:.a ~~ IU.I""'-O '.... 'IlL vcro! I SI::l9H4::lJB I I Wn!pOSUOO ! I ~ ~ 30N3a1S3l:l Sl:lV3dS I ft ! I --'" I ! [PI a {] I 0 I ~ I ~ 0 C 0 i ~ t I I ~ ~I - .... o - ~ p.., -.-------....----,<.... DEED RESTRICTION AND AGREEMENT FOR ESTABLISHMENT OF HISTORIC TRANSFERABLE DEVELOPMENT RIGHT PURSUANT TO ASPEN CITY COUNCIL ORDINANCE # _, SERIES OF 2006 THIS DEED RESTRICITON AND AGREEMENT is made and entered into this day of ,2006, by Nancy M. Spears, (hereinafter referred to as "Owner"), whose address is P.O. Box , Aspen, CO 81612, located in the City of Aspen, State of Colorado, and The City of Aspen, a body politic and corporate pursuant to its Home-Rule Charter and the Constitution of the State of Colorado, acting through its City Council, (hereinafter the "City"); WITNESSETH WHEREAS, Owner owns real property more specifically described Lot K, Block 65, City and Townsite of Aspen; Parcel ID 2735-124-37-005, Pitkin County, Colorado, also known as 100 East Bleeker Street, Aspen, (hereinafter referred to as "Real Property"), which Real Property is designated as a Historic Site, as such are defined in the City of Aspen Land Use Code ("City Code"); and WHEREAS, Owner has submitted an affidavit, duly notarized, in compliance with Section 26.535.040 of the City Code, and supplied the necessary application materials identified in Section 26.535,090 showing compliance with the criteria set forth in Section 26.535.070 of the City Code; and WHEREAS, The Community Development Department has reviewed Owner's application according to the review standards identified in 26.535.060 ofthe City Code, and has recommended approval of the application and the establishment of two (2) Historic TDR Certificates as set forth herein; and WHEREAS, City Ordinance No._, Series of2006 dated July _,2006 (the "Ordinance"), approves the establishment of the above referenced Historic TOR Certificates, and requires that a Deed Restriction be recorded in real property records of Pitkin County, designating the Real Property as a Sending Site and permanently restricting the development of the Real Property (the Sending Site) to an allowable Floor Area not exceeding the allowance for a single, family residence minus two hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates established; and WHEREAS, in consideration of the establishment of two Historic TDR Certificates pursuant to the Ordinance and City Code, Owner agrees to restrict the Real Property as set forth herein. NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, Owner and the City hereby covenant and agree as follows: Draft TDR Deed Restriction.doc 1 I. Development of the Real Property (the Sending Site) is hereby permanently restricted to an allowable Floor Area not exceeding the allowance for a single- family residence as otherwise permitted by the City Code on the Real Property, minus five hundred (500) square feet, that being two hundred fifty (250) square feet of Floor Area multiplied by the two Historic TDR Certificates hereby established. 2. In consideration of the foregoing, and pursuant to the City Code and the Ordinance, the City shall cause the issuance of two (2) Historic TDR Certificates, executed by the Mayor, each allowing the development of an additional two hundred fifty (250) square feet of Floor Area on a Receiver Site to be determined pursuant to the City Code. These Historic TDR Certificates may be sold, assigned, transferred, or conveyed. Transfer of title shall be evidenced by an assignment of ownership on the actual certificate document. Upon transfer, the new owner may request the City re-issue the certificate acknowledging the new owner, Reissuance shall not require adoption of a new ordinance. The market for such Historic TDR Certificates shall remain unrestricted and the City shall not prescribe or guarantee the monetary value of any Historic TDR Certificates. 3. This deed restriction shall not be construed to stipulate an absolute Floor Area on the Real Property, but only a square footage reduction from the allowable Floor Area, as that allowable Floor Area may be amended from time to time. 4. The Real Property (Sending Site) shall remain eligible for Floor Area incentives, bonuses and/or exemptions as may be authorized by the City Code, as it may be amended from time to time. 5. This restriction may be modified only in a writing signed by both the Owner and the City. 6. Unless modified as stated above, this Agreement shall constitute a covenant running with the Real Property as a burden thereon for the benefit of, and shall be specifically enforceable by, the City Council of the City of Aspen by any appropriate legal action including, but not limited to, injunction or abatement. [SIGNATURES ON FOLLOWING PAGES] Draft TDR Deed Restriction.doc 2 APPROVAL OF CITY ATTORNEY By: John P. Worcester, City Attomey THE CITY OF ASPEN, COLORADO a body politic and corporate pursuant to its Home-Rule Charter and the Constitution of the State of Colorado By: Date: Helen Klanderud, Mayor STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this ,200_, by day of Witness my hand and official seal. My commission expires: Notary Public Draft TOR Deed Restriction.doc 4 IN WITNESS HEREOF, the parties hereto have executed this instrument on the date and year above first written. OWNER: By: Nancy M. Spears STATE OF COLORADO ) )ss. COUNTY OF PITKIN ) The foregoing instrument was acknowledged before me this , 200 , by day of Witness my hand and official seal. My commission expires: Notary Public Draft TDR Deed Restriction.doc 3 . -I AFFIDAVIT OF CITY OF ASPEN TRANSFERABLE DEVELOPMENT RIGHT (TDR) SENDING SITE OWNER REQUIRED BY SECTION 26.535.090(A)(2), ASPEN LAND USE CODE STATE OF COLORADO ) ) 55. County of Pitkin ) I, Nancy Spears, being the owner of the property located at 100 East Bleeker Street (Lot K, Block 65, City & Townsite of Aspen, State of Colorado) in the City of Aspen, Colorado (hereinafter "the Property"), and being an Applicant to the City of Aspen, Colorado, for the establishing the Property as a Sending Site for two (2) historic transferable development rights do hereby personally certify that I acknowledge the following: a. A deed restriction will permanently encumber the Sending Site and restrict the Property's development rights to below that allowed by right by zoning according to the number of Historic TDR Certificates established from that Sending Site; and, b. For each certificate of development right issued by the City for the Sending Site, the Property shall be allowed two-hundred and fifty (250) square feet less of Floor Area, as permitted according to the property's zoning, as amended; and, c. The Sending Site property owner shall have no authority over the manner in which the certificate of development right is used by subsequent owners of the Historic TDR Certificate(s). The foregoing "Affidavit of City of Aspe~le Development Right (TDR) Sending Site Owner" was acknowledged befor ayof , 2000, by Nancy Spears, Owner. + !;~..A.Fi...~-ft - .o"t .... ~. . ::J :" ~ ._"-: WITNESS MY HAND AND OFFICIAL SEAL 0:.."",. . ... CJ: () -. ,.- Ilif Il"..""ue;.-,.ot?- J-... ...... 0" 1'1' OF C My co <I ,~~ Notary Public -.1-- 'lJ][ t, · MEMORANDUM TO: Mayor Klanderud and Aspen City Council Chris Sendon, Community Development Directo~ THRU: FROM: Sara Adams, Historic Preservation Planner RE: 403 West Hallam Street- Establishment of Two (2) Historic Transferable Development Right Certificates, Second Reading of Ordinance # 32 Series of 2006. DATE: August 14,2006 SUMMARY: The application before the City Council is for the establishment of two Historic Transferable Development Right (TDR) Certificates. Each TDR comprises 250 square feet of Floor Area. The purpose ofa TDR is to encourage the preservation of Historic Landmarks within the City of Aspen by permitting those property owners to sever and convey, as a separate development right, undeveloped Floor Area to be developed on a different and non-historic property within the City of Aspen. The program enables standard market forces, and the demand for residential Floor Area, to accomplish a community goal of preserving Aspen's heritage as reflected in its built environment. Funds that are gained from the sale ofTDRs may be invested back into the landmark. The proposed "sending site" is a miner's cottage constructed before 1893, and is listed on the Aspen Inventory of Historic Sites and Structures. The historic property comprises a 4,500 square foot lot located among a number of other Victorian era homes. The issuance of two TDR certificates to the sending site of 403 West Hallam Street, will remove a total of 500 square feet of developable Floor Area from the historic property, thereby reducing the base allowable FAR, as per zoning, (excluding bonuses) from 2,820 to 2,320 square feet. City Council members expressed concern about the application at first reading; therefore Staff compiled a breakdown of calculations to provide clarification and serve as a reference in Exhibit A. Staff recommends that City Council validate and issue two Historic Transferable Development Right Certificates (250 square feet of FAR each) to the "sending site" of 403 West Hallam Street. The review criteria are met and TDR certificates are a good tool for preserving a historic resource by reducing development pressure. APPLICANT: Stanley Gibbs and Mary Janss, owners, PARCEL ID: 2735-124-33-005. ADDRESS: 403 West Hallam Street, Lots I and the east Yz of Lot H, Block 36, City and Townsite of Aspen, Colorado. ZOl\'ING: R-6, Residential TRANSFERABLE DEVELOPMENT RIGHTS (TDR) In order to complete the establishment of Historic Transferable Development Rights, the applicant shall meet the following requirements listed in Section 26.535.070 of the Aspen Land Use Code. Section 26.535.070 REVIEW CRITERIA FOR ESTABLISHMENT OF HISTORIC TRANSFERABLE DEVELOPMENT RIGHT. A Historic TDR Certificate may be established by the Mayor of the City of Aspen if the City Council, pursuant to adoption of an ordinance, finds all the following standards met: a) The Sending Site is a Historic Landmark on which the development of a single- family or duplex residence is a permitted use, pursuant to Chapter 26.710. Properties on which such development is a conditional use shall not be eligible. Staff Finding: The proposed 4,500 square foot sending site is located within the R-6 zone district, which allows residential single,family use. The sending site is a designated Historic Landmark, listed on the Aspen Inventory of Historic Landmark Sites and Structures. b) It is demonstrated that the Sending Site has permitted unbuilt development rights, for either a single-family or duplex home, equaling or exceeding two-hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates requested. Staff Finding: The subject property has an allowable FAR of 2,820 square feet for a 4,500 square foot property in the R,6 zone district. The applicant received HPC approval for a project that they have chosen to construct in phases. The recently completed construction has utilized 1,831.9 square feet of FAR, which provides 988.1 square feet of remaining FAR for a single-family residence. Two TDRs of 250 square feet each are eligible for establishment, which would reduce the remaining unbuilt FAR to 488.1 square feet. c) It is demonstrated that the establishment of TDR Certificates will not create a nonconformity. In cases where nonconformity already exists, the action shall not increase the specific nonconformity. 2 Staff Finding: The establishment of two TDRs will not increase the existing non-conformity: the garage, an older structure, encroaches on the alley. No new non,conformities will be created. d) The analysis of unbuilt development right shall only include the actual built development, any approved development order the allowable development right prescribed by zoning, and shall not include the potential of the Sending Site to gain Floor Area bonuses, exemptions, or similar potential development incentives. Staff Finding: This is a two part analysis: I) actual built development, i.e. the existing condition of the property and 2) analysis of approved development orders. 1) The total existing built FAR on the property is 1,831.9 square feet out of an allowable FAR of 2,820 square feet, leaving a remainder of 988.1 square feet of unbuilt FAR. After severing two 250 square foot TDR certificates, 488.1 square feet of unbuilt FAR will remain on the property. 2) The zoning allows a maximum of 2,820 square feet of FAR on the subject property. The HPC approved development is 2,658 square feet. Severance of 2 TDRs will result in an allowable FAR of 2,320 square feet, which produces a deficit of 338 square feet of FAR on the property while simultaneously allowing the use of the 350 square foot FAR bonus. As stated in part d above, the potential of the sending site to gain an FAR bonus is not included in the analysis of unbuilt development rights because the bonus is contingent on the severing of 2 TDRs, which have yet to be approved by Council. Therefore, the potential of the property to gain an FAR bonus is not realized. e) Any development order to develop Floor Area, beyond that remaining legally connected to the property after establishment of TDR Certificates, shall be considered null and void. Staff Finding: The property will not include any development order to develop Floor Area beyond that remaining legally connected to the property after the establishment of two TDR certificates. Between the reduced base FAR of 2,320 square feet and the awarded 350 square foot bonus for approved development, the approved development order will not involve any more Floor Area than permissible under this standard. f) The proposed deed restriction permanently restricts the development of the property (the Sending Site) to an allowable Floor Area not exceeding the allowance for a single-family or duplex residence minus two hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates established. The deed restriction shall not stipulate an absolute Floor Area, but shall stipulate a square footage reduction from the allowable Floor Area, as may be amended from time to time. The Sending Site shall remain eligible for certain Floor Area 3 --I.. incentives and/or exemptions as may be authorized by the City of Aspen Land Use Code, as may be amendedfrom time to time. Theform of the deed restriction shall be acceptable to the City Attorney. Staff Finding: The applicant clearly states an understanding of this standard (f) in the application. g) A real estate closing has been scheduled at which, upon satisfaction of all relevant requirements, the City shall execute and deliver the applicable number of Historic TDR Certificates to the Sending Site property owner and that property owner shall execute and deliver a deed restriction lessening the available development right of the subject property together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder's Office. Staff Finding: The application states that the requirements of section (g) are understood by the applicant. h) It shall be the responsibility of the Sending Site property owner to provide building plans and a zoning analysis of the Sending Site to the satisfaction of the Community Development Director. Certain review fees may be required for the confirmation of built Floor Area. Staff Finding: The application demonstrates a clear understanding of the requirements of section (h). RECOMMENDATION: Staff recommends that Council approve Ordinance # 32, Series of 2006, the request for two Historic Transferable Development Right Certificates for the sending site located at 403 West Hallam Street on Second Reading. RECOMMENDED MOTION: "1 move to approve Ordinance # 32, Series of2006, upon second reading." CITY MANAGER COMMENTS: Exhibits: Exhibit A - Calculations Exhibit B ' Drawings Exhibit C - Application 4 ORDINANCE NO. 32 (SERIES OF 2006) AN ORDINANCE OF THE ASPEN CITY COUNCIL ESTABLISHING TWO (2) 250 SQUARE FEET OF FLOOR AREA HISTORIC TRANSERABLE DEVELOPMENT RIGHT CERTIFICATES FOR THE SENDING SITE OF 403 W. HALLAM STREET, LOTS I AND THE EAST Y, OF LOT H, BLOCK 36 CITY AND TOWNSITE OF ASPEN, PITKIN COUNTY, COLORADO Parcel ID #: 2735-124-33-005. WHEREAS, the applicant, Stanley Gibbs and Mary Janss, have requested the establishment of two (2) Historic Transferable Development Right Certificates for the sending site located at 403 W. Hallam Street, Lot I and the East II, of Lot H, Block 36, City and Townsite of Aspen, Colorado; and WHEREAS, in order to establish a Historic Transferable Development Right Certificate, the applicant shall meet the following requirements of Aspen Municipal Code: Section 26.535.070 which is as follows: 26.535.070, Review Criteria for the Establishment of Historic Transferable Development Rieht. A Historic TDR Certificate for 250 square feet of Floor Area may be established by the Mayor of the City of Aspen if the City Council, pursuant to adoption of an ordinance, finding all the following standards met: a) The Sending Site is a Historic Landmark on which the development of a single-family or duplex residence is a permitted use, pursuant to Chapter 26.710. Properties on which such development is a conditional use shall not be eligible. b) 1t is demonstrated that the Sending Site has permitted unbuilt development rights, for either a single-family or duplex home, equaling or exceeding two-hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates requested. c) Jt is demonstrated that the establishment of TDR Certificates will not create a nonconformity. 1n cases where nonconformity already exists, the action shall not increase the specific nonconformity d) The analysis of un built development right shall not only include the actual built development, any approved development order the allowable development right prescribed by zoning, and shall not include the potential of the Sending Site to gain Floor Area bonuses, exemptions, or similar potential development incentives e) Any development order to develop Floor Area, beyond that remaining legally connected to the property after establishment of TDR Certificates, shall be considered null and void. ,...1..... f) The proposed deed restriction permanently restricts the development of the property (the Sending Site) to an allowable Floor Area not exceeding the allowance for a single-family or duplex residence minus two hundred and fifty (250) square feet of Floor Area multiplied by the number of Historic TDR Certificates established. The deed restriction shall not stipulate an absolute Floor Area, but shall stipulate a square footage reduction from the allowable Floor Area, as may be amended from time to time. The Sending Site shall remain eligible for certain Floor Area incentives and/or exemptions as may be authorized by the City of Aspen Land Use Code, as may be amended from time to time. The form of the deed restriction shall be acceptable to the City Attorney. g) A real estate closing has been scheduled at which, upon satisfaction of all relevant requirements, the City shall execute and deliver the applicable number of Historic TDR Certificates to the Sending Site property owner and that property owner shall execute and deliver a deed restriction lessening the available development right of the subject property together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder's Office. h) It shall be the responsibility of the Sending Site property owner to provide building plans and a zoning analysis of the Sending Site to the satisfaction of the Community Development Director. Certain review fees may be required for the confirmation of built Floor Area. WHEREAS, the Community Development Director reviewed and recommended approval of the application, finding that the applicable review standards have been met; and, WHEREAS, pursuant to Sections 26.535.040 of the Municipal Code, the City Council may establish Historic Transferable Development Rights during a duly noticed public hearing after taking and considering comments from the general public and recommendations from the Community Development Director; and WHEREAS, the City Council finds that the application meets or exceeds all applicable standards and that the establishment of Historic Transferable Development Rights is consistent with the goals and elements of the Aspen Area Community Plan; and, WHEREAS, the City Council finds that this Ordinance furthers and is necessary for the promotion of public health, safety, and welfare. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO THAT: 1,-, Section 1 The City Council finds that the application meets all required standards and eligibility as stated in Section 26.535.030 and Section 26.535.070, and applicant's submission is complete and sufficient to afford review and evaluation for approval; and Section 2 The City Council does hereby establish two (2) Historic Transferable Development Rights of 250 square feet of Floor Area to the sending site located at 403 W. Hallam Street, Lots I and the east Y, of Lot H, Block 36, City and Townsite of Aspen, Colorado with the following conditions: I. Upon satisfaction of all requirements, the city and the applicant shall establish a date on which the respective Historic TDR Certificates shall be validated and issued by the City and a deed restriction on the property shall be accepted by the City and filed with the Pitkin County Clerk and Recorder. 2. On the mutually agreed upon date, the Mayor of the City of Aspen shall execute and deliver the applicable number of Historic TDR Certificates to the property owner and the property owner shall execute and deliver a deed restriction lessening the available development right of the Sending Site (403 West Hallam Street, Lots 1 and the east Y, of Lot H Block 36 City and Townsite of Aspen) by 500 square feet together with the appropriate fee for recording the deed restriction with the Pitkin County Clerk and Recorder's Office. Section 3: This Ordinance shall not effect any existing litigation and shall not operate as an abatement of any action or proceeding now pending under or by virtue of the ordinances repealed or amended as herein provided, and the same shall be construed and concluded under such prior ordinances. Section 4: If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and shall not affect the validity of the remaining portions thereof. Section 5: A public hearing on the ordinance will be held on the 141h day of August, 2006, in the City Council Chambers, Aspen City Hall, Aspen, Colorado. Section 7: This ordinance shall become effective thirty (30) days following final passage. ----..1.._ INTRODUCED, READ AND ORDERED PUBLISHED as provided by law, by the City Council of the City of Aspen on the 10th day of July, 2006. Helen Kalin Klanderud, Mayor Attest: Kathryn S. Koch, City Clerk FINALLY, adopted, passed and approved this 14th day of August, 2006. Helen Kalin Klanderud, Mayor Attest: Kathryn S. Koch, City Clerk Approved as to form: John P. Worcester, City Attorney 403 West Hallam Exhibit A CALCULA nONS: I) FAR calculation as written in Aspen Municipal Land Use Code: Lot size + zone district ~Allowable FAR 4,500 sq. ft. + R6 = 2,820 sq. ft. Allowable FAR 2) Existinl!: Condition: Allowable FAR - Total Existing built FAR on property = Available unbuilt FAR 2,820 sq. ft. - 1831.9 = 988.1 sq. ft. 3) Unbuilt FAR available after Establishment of2 TDRs: Unbuilt FAR - TDR certificates = Available unbuilt FAR after severing 2 TDRs 988.1 sq. ft. - 2(250 sq. ft.) = 488.1 sq. ft. 4) Base Allowable FAR for Propertv after Establishment of2 TDRs Allowable FAR - TDR certificates = Base Allowable FAR after severing 2 TDRs 2,820 sq. ft. - 2(250 sq. ft.) = 2,320 sq. ft. 5) Available FAR after Approved Rehabilitation and Future Development: Allowable FAR ajier TDR Severance - ( Approved HPC plans for rehab! development Phase 1 + Phase 11) = Unbuilt FAR 2,320 sq. ft. - (1831.9 + 826.1) = -338 sq. ft. 6) Unbuilt FAR after Completion of Project and Utilization of FAR Bonus (contingent on approval ofTDRs by Council) Unbuilt FAR after Development of HPC Approved Plans + HPC FAR Bonus = Unbuilt FAR after Completion of Project. -338 sq. ft. + 350 sq. ft. FAR bonus ~ 12 sq. ft. The existing built condition of the property allows for the establishment of 2 TDR Certificates. The plans, as approved by HPC, are contingent on the severing of 2 TDR Certificates, which will enable the project to realize the conditional 350 square foot FAR bonus granted by HPC, and complete the approved project. _~cJ DEED RESTRICTION THIS DEED RESTRICTION ("Agreement") is made as of the day of , 2006 by the Mary Janss 1992 Revocable Living Trust ("Declarant") for the benefit of the CITY OF ASPEN, COLORADO ("City"). RECITALS A. Declarant owns certain real property, legally described as 403 W. Hallam St., BLK 36, LOT I and east half of LOT H, City and Townsite of Aspen, Colorado (the "Property"). B. Concurrently with the execution of this Agreement and pursuant to Ordinance No. 50. Series of2004, the City is executing and delivering to Declarant two (2) separate Historic Transferable Development Rights, bearing Certificate Numbers~ 403 W. HaI1am TDR No. 1 and 403 W. Hallam TDR No.2 (the "Certificates") evidencing the permanent severance from the Property of development rights in the amount of500 square feet of Floor Area. C. In exchange for the issuance of said Certificates by the City, Declarant is prepared to deed restrict the Property to an allowable Floor Ar~ as such term is defined in the City Land Use Code, as amended (the "Code"), specified by the applicable zone district regulations applicable to the Property in the Code,,-ph.. 1 ~o oq"~re fPPt ofFwgr Area grant"-db)' tbe A'lJ"'n Hist9ril.: Preserl'atjgn C'nIllDi~a, minus that amount of Floor Area permanently severed from the properly, as stipulated above, Now, therefore, in consideration of the issuance of the Certificates to Declarant, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, Declarant agrees as follows: 1. Deed Restriction ofProoertv. 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II!I -------ul " !l Ii " ii m I ,. Ii """'-..IlSOJ;/.S (II I '0 H^UAM5TREET .1 .1 C V J. C FOR lJ M Janss - Gibbs Residence[] 403 West Hallam, Aspen, CO. P,O....... . "',.n, CO'l'" . TH n. 91l1_0Ul . fAX ... "0-'03' 11 " I ~J' en i "' =i m H ~ <; .. z PI f \' '\ ~ \ DO I L- " m c~ ",0 ~~ mm ,0 ~~ > n ^ >mm ;::~~ ~ i::. ~>Q (J\~~ ;am> m"'Q m-m ,z _z ~~~ ~>o ",n> ;;;jiliS': m"'Q o,m ,z /0 _ ~' 1] om ~~ "> m'" ~~ ;;i- 0' > ~ o z '" it U> ;ti m m -1 , m . HALLAM 5TREET , z i .~~ a~ ~ m ~ , " o z , c v c FOR U Janss Gibbs Residence 403 West Hallam, Aspen, CO. I Iii! Imil ..0.8...... A.p'". CO..." . Tn n. ......., . fAX'" ....,,,. ALLEY ,0 0, ,ji!l~ I"" mO <> ~" O~ ~ c~ r' 0" ~~ 00 m~ o :~ '~r ~~!~ ~ I m~;;'l m" ~ ~ n' ^ z ~m =<~ ~;I On m' "';;j >- rm "" ~ o iii om 'x 6g] CZ "'0 m, o '" 3 ~~--- , o " g '" ~ ;;i " '" , " o ~ ~ o > o o 3 o z om 'x IW 0" CZ 00 m, o '" 3 o z M D --I ! ii! \ ! I ~6~ ! , ! ~ ~ , m ! m , ~ ! ~ I 0 I c t- O m ~ , ~ I D z ,~ 1- ' c +-- '?i: ! ,< -~ ; , ! ! , I , , , , i ! ! i , !; , i j , , , , , ~~ I ! i ! ! ! , ,8 }- !i : Ii! z i!! 0 ~ I ~ rJ- - z j " m II I m ~ , " ! 0 z , , , 1. 1. V I C Fo R U Janss - Gibbs Residence 403 West Hallam, Aspen, CO. r.o. s.. 550 . A.pu, co IUH . Tft 970 no. OUl . FAX 970 920. 7tH ii!' ! I!.! ' I'" ! 2" I! <! i! DO 1. ili! Ill'" li.jll c I ~ ! , , , I I l , , - D M ~~ II .' 'I !, ! i I I z 0 I 'i ~ m I , > c I ~ 0 z ~ " ~ .f I 0 ~ "I ~ ~ ! m ~ ~ ~ I~ 0 ,0 z 'Z DC] .1 mil 1m!! c II 1 I , < i I tF- II II I II rrr - lJ II III ~ II ~ II ~ jj II m ~ III ~ II c ~ 3 g I, - I I ----'-.E" II _ _ ----P I - I' ! ~ ! i i ! ,1-,-,-,- ~ , , ! , . i I P.O. Boo 550. ....p.n. CO lUll. TEL 910 UO_OHl . f"'X 970 920- 7." -- -.--------1 " PRoner: Name: Location: Parcel 10 # Land Use Application ~ THE em Of AsPEN rA1US~/618BS;; 1!~t'1>eNce -$'03 W. ~ sr, A-f'EIJ Co (] l-tL 5i Lo,- T +- F /i.. ' f/o-r H (Indicate street addn!ss, lot & block number or metes and bounds description of property) (REQUIRED) :; 7 '3S- - /;l. t/- 'J '5 -t)OS' REl'RI:SENI'ATlVJ:: Name: Address: Phone #: APPLICANT: Name: Address: Phone #: s..,-r;tJu::-Y /1tI. GIBBS of- 1/11~1 .:J7/7v's..> 4Gl.~ W. ~ Jr /ls17e#, C.l:l. 8/6/}-/1.1/1/ l ' 7rJ- w-21t.z-- Fax#: ~7Zlr~.2r~,)'7z.,'1.-E-mail:.5 n. il.ahsGiJ.h . eo~ Fax#: E-mail: TYPE OF APPLICATION: lease check all that o Historic I}Hipon o Certificate of No Negative Effect o Certificate of Appropriateness o -Minor Historic Development o -Major Historic Development o -Conceptual Historic Development o -Fmal Historic Development o -Substantial Amendment o Relocation (temporary, on or off-site) o Demolition (total demolition) o Historic Landmark Lot Split ~ T]>~ ExIsrlNG CONDmONS: descri' of . . Re<J..fe.t~ ~ 1<7~-t e. etc, 0Y~ ~ ~ PROPOSAL: .. on of buil' uses, modifications, etc, CS'TJ'9(l~H 2- ;f1~RJ,e1 L. 7D1< C!...OZ-n,c,c~ RETAIN FOR PERJAANEMT RECORD .1 FEES DUE: $ /'3S0.0-0 r General Information . Please check the appropriate boxes below and submit this pagr! along with your application. This information will YES NO '1- ~ o o o ~ ~ x o x- help us review your plans and, if TleC"ttnry. coordinate with other agencies that may be involved Does the work you are planning include exterior work; including additions, demolitions, new construction, remode1ing, rehabilitation or restoration? Does the work you are planning include interior work; including remodeling, rehabilitation, or restoration? Do you plan other future changes or improvements that could be reviewed at this time? In addition to City of Aspen approval for a Certificate of Appropriateness or No Negative Effect and a building permit, are you seeking to meet the Secretary of the Interior's Standards for Rehabilitation or restoration of a National Register oflHstoric Places property in order to qualifY for state or federal tax credits? )( If yes, are you seeking federal rehabilitation investment tax credits in conjunction with this project? (Only income producing properties listed on the National Register are eligible. Owner-occupied residential properties are not.) o If yes, are you seeking the Colorado State Income Tax Credit for lHstorical Preservation? Please check all City of Aspen lHstoric Preservation Benefits which you plan to use: o Rehabilitation Loan Fund 0 Conservation Easement Program 0 Dimensional Variances 0 Increased Density 0 lHstoric Landmark Lot Split 0 Waiver of Park Dedication Fees 0 Conditional Uses 0 Exemption from Growth Management Quota System )tTax Credits I Dimensional Requirements Form (Item #10 on the submittal requirements key. Not necessary for all projects.) f'O$ fA/. /-f1,fu..""", -:JA1<-IC> - 61B8S ~'!/])E:7Vc{;' S~"e:v GIBgs' .1,/01 tAl, ~ &y:?/,:..,v . "ut:JJ/1MtA 'f)e'VSrrl ~c:;/.D{:;iVTd'J<-:- t€c. ~I(.. ~~ J/~ -/ O?J L/~ (For the purposes of calculating Floor Area, Lot Area may be reduced for areas within the high water mark, ClP"""""4Jts, and steep s1opes. Please refer to the definition of Lot Area in the Municipal Code.) Project: Applicant: Project Location: Zone District: Lot Size: Lot Area: Existing: Existing: Existing: Proposed: I Proposed: 3 Proposed: Commercial nct leasable: Number of residential units: Number ofbedrooms: DIMENSIONS: (write nla where no requirement exists in the zone district) Floor Area: Existing: I f3/.1 Allowable: J.~ U Proposed: Hei~ Principal Bldg.: Accessory Bldg.: On-Site parking: Existing: 20' "3 ~Allowable: Existing: ,.v //I- Allowable: , Existtng: I Required: Existing: Requtred: Existing: JlI In Required: ...2 " Front Setback: Existing: /6'. .J.}V Required: Rear Setback: Existing:~C-<d'J1ti'quired: Combined FrontlRear: Ie,' ~ I II Indicate N, S. E. W II Existing: If, - z}/<f Required: Side Setback: ~ ExiSting:~::::Zt Required: Side Setback: vJ Existing: .3 I Required: Combined Sides: Existtng: 3 I Requtred: Proposed % of demolition: % Site coverage: % Open Space: Distance between buildings: Proposed: Proposed: Proposed: Proposed: Proposed: Proposed: Proposed: Proposed: Proposed: Proposed: Proposed: .)- Existing: .-- Proposed: Required: Existing non-confonnitiC}or encroachments and note if encroachment licenses have been issued: 4~ ~ 81"'l.s~..Ala~A.f- Variatio requested (identify the exact variances needed): BUILDING AREA HOUSE GROUND FLOOR: (943.9 SF EXTG,) AS PROPOSED: LIVING 1076.5 SF STORAGE 4.9 SF 1,081.4SFTIL 1,079.0 SF FAR 2ND FLOOR: (534.0 SF EXTG.) AS PROPOSED: LIVING 436.6 SF STORAGE 236.3 SF 672.9 SF TIL 554,8 SF FAR BASEMENT: ( 228 SF EXTG.) AS PROPOSED 966.3 SF AREA OF BASEMENT PERIM. 1,404 SF AREA OF EXPOSED BASEMENT = 133 SF =9.5 % OF TOTAL AREA 966.3 SF TIL 91.8 SF FAR ~: TOTAL HOUSE AREA 2,720,6 SF --{J TOTAL HOUSE FAR 1,725.6 SF FAR TOTAL GARAGE AREA 462.6 SF 250 SF EXEMPT REMAINDER @ 50 % GARAGE FAR = 106.3 SF FAR ~ TOTAL FAR 1,831.9 SF ALLOW ABLE AREA: BASE ALLOW ABLE AREA : LOT AREA = 4,500 SF BASE ALLOW. AREA = 2,820 SF REMAINING BASE ALLOWABLE 988.1 SF BONUS UP TO 350 SF (PER HPC APPROVAL) REMAINING ALLOWABLE INCUDING BONUS 1338.1 SF Response to Review Criteria for Establishment of a Historic Transferable Development Right, section 26.535.070 of Aspen Land Use Code. Project: 403 W. Hallam St, Aspen A) Sending site is on the list of historic properties. B) Current development will leave 1338 sq. ft. of un-built FAR, which includes 350 sq. ft. granted by HPC during the review process. Two TDR certificates are being requested, which would leave 1338 - 500 = 838 sq. ft. FAR. C) Nonconformity?? D) The analysis does include the 350 sq. ft. previously granted by HPC because that FARis being consumed by the current construction. E) Ok. F) This is understood. G) Ok. H) Ok. Affadavit The undersigned owner of the property located at 403 W. Hallam St., Aspen, CO, acknowledges the following in relation to the issuance of historic TDR certificates established from this Sending Site: I) A deed restriction will permanently encumber the Sending Site and restrict that property's development rights to below that allowed by right by zoning according to the number of Historic TDR Certificates established from that Sending Site. 2) For each certificate of development right issued by the City for the particular Sending Site, that property shall be allowed two hundred and fifty (250) square feet less of Floor Area, as permitted according to the property's zoning, as amended. 3) The Sending Site property owner shall have no authority over the manner in which the certificate of development right is used by subsequent owners of the Historic TDR Certificate. Signed this day of May, 2006, By 5\ \'5\ 0 Ie ~~Cb GJO ~ (\fu___ ':l [- . I L _.' I:: ~ ~ - . i " I I - -,,- - 'j \ -i--/+-- \ / / : l' -'1- - c"J. 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